UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TRIAL  TACTICS. 


BY 


ANDREW  J.  HIRSCHL, 
fit 

OF  THE  CHICAGO  BAR, 
Author  of  "  Combination  of  Corporations,"  and  other  books. 


CHICAGO,  ILLINOIS: 
T.  H.  FLOOD  &  CO.,  PUBLISHERS, 

1906. 


T 


COPYRIGHT,    1906, 
BY 

ANDREW  J.  HIRSCHL. 


CONTENTS 

PREFACE I 

>  INTRODUCTORY        V 

«s.  I.     SELECTION  OF  THE  COURT 1 

^  II.     PREPARING  FOR  TRIAL 40 

III.  COURTROOM  CONDUCT 51 

IV.  REPORTING  THE  CASE 59 

V.     CALLING  THE  JURY 67 

VI.     CLASSIFICATIONS  OF  JURORS 82 

VII.  PREPARATION  OF  THE  WITNESSES     ....  103 

VIII.     PRESERVING  THE  EVIDENCE 127 

v         IX.     THE  OPENING  STATEMENT 139 

X.    INTRODUCING  THE  EVIDENCE 148 

w        XI.    EXPERT  EVIDENCE 178 

v      XII.     THE  CROSS-EXAMINATION 187 

XIII.  INSTRUCTIONS;   SPECIAL  FINDINGS;   VERDICTS   227 

XIV.  THE  ARGUMENTS  .  244 


427887 


To  THE  PUBLISHER  OF  "  TRIAL  TACTICS/' 

Dear  Sir:  The  book  of  Mr.  Andrew  J.  Hirschl  on 
"  Trial  Tactics  "  fills  as  far  I  know  a  distinct  niche  in 
legal  literature. 

Every  law  suit  may  be  aptly  compared  to  a  drama  in 
real  life.  This  book  gives  a  peep  behind  the  scenes. 

Every  law  suit  may  also  be  aptly  compared  to  a  battle. 
This  book  gives  a  view  of  the  generalship  on  each  side, 
conducted  by  the  respective  lawyers,  and  of  the  tactics  by 
which  battles  are  won  and  lost. 

It  is  interesting  to  the  general  reader,  and  it  is  useful 
to  all  lawyers,  but  especially  to  the  student  and  young 
practitioner,  for  in  this  book  Mr.  Hirschl  has  distilled  the 
essence  of  a  wide,  varied  and  active  practice  of  nearly 
thirty  years.  Very  truly  yours, 

JOHN  F.  DILLON. 

195  Broadway,  New  York,  June  28.  1906. 


PREFACE. 

The  following  chapters  are  not  an  attempt  to 
formulate  any  fixed  and  definite  rules  or  prin- 
ciples for  the  trials  of  causes.  The  art  of  try- 
ing causes  is  not  gained  from  the  statutes  or  the 
decisions  or  from  any  other  such  source,  but 
chiefly  if  not  altogether  from  experience. 

The  suggestions  in  the  following  pages  are  in- 
tended to  help  the  student  and  young  practi- 
tioner to  gain  success,  should  success  be  de- 
served, by  profiting  from  the  experience  of 
others  without  suffering  the  accompanying  dis- 
advantages himself. 

It  is  requested  that  the  pages  be  read  in  suc- 
cession from  the  beginning.  The  later  ones  pre- 
suppose a  knowledge  of  what  has  preceded  and 
may  be  unintelligible  without  it.  The  chapter 
heads  and  titles  are  not  to  be  followed  too 
closely,  since  they  are  at  best  but  a  broad  desig- 
nation of  the  subject  matter. 

ANDREW  J.  HIRSCHL. 


INTRODUCTORY. 

The  skillful  conduct  of  a  trial  may  be  com- 
pared somewhat  to  the  jiu  jitsu  system  of  wrest- 
ling, which  enables  the  inferior  man,  with  less 
weight,  less  strength  and  less  endurance  to  win 
because  he  knows  better  how  to  apply  the  weight 
and  the  strength  that  he  does  possess,  while  the 
heavier  and  stronger  man  loses  because  he  does 
not  know  how  to  apply  these  forces  at  the  right 
time  or  in  the  right  manner.  Law  books  con- 
tain decisions  upon  certain  instructions,  hold- 
ing them  technically  right  or  wrong,  but  no- 
where do  these  books  indicate  how  to  get  those 
lawful  and  honorable  advantages  in  the  litiga- 
tion which  are  a  legitimate  part  of  the  lawyer's 
duty  to  his  client.  If  one  of  the  Seconds  in  a 
boxing  match  should  neglect  to  take  the  choice 
corner  and  should  set  his  man  up  with  the  strong 
sunlight  in  his  eyes  it  would  be  considered  gross 
negligence.  In  a  law  suit  the  lawyer  is  the 
Second.  He  must  put  his  client  in  the  right 
corner  and  to  fail  to  do  so  is  to  subject  himself 
to  the  charge  of  negligence. 

If  a  client  for  instance  is  liable  for  a  debt,  but 
the  statute  of  limitations  has  run  against  the 


vi  INTRODUCTORY. 

demand  it  is  his  lawyer's  duty  to  plead  the 
statute.  To  many  this  seems  dishonorable  be- 
cause they  think  that  if  a  man  owes  a  debt  he 
ought  to  pay  it  no  matter  how  old  it  is,  but  it 
is  the  lawyer's  duty  to  plead  limitations  and  if 
he  neglects  to  do  so  he  would  be  responsible  for 
the  result. 

There  are  other  steps  which  must  be  taken  in 
a  case  not  so  clear  as  pleading  the  statute  of 
limitations,  for  the  omission  of  which  the  attor- 
ney would  be  considered  delinquent.  These 
steps,  or  rather  moves,  are  to  be  presently  con- 
sidered. 

The  matter  of  setting  a  case  together  is  often 
as  important  as  the  case  itself  and  it  is  honorable 
for  a  practitioner  to  use  every  reasonable  and 
lawful  advantage  in  this  regard.  If  the  law- 
yer on  the  other  side  is  doing  his  duty,  he  is 
striving  to  do  the  same  for  his  client.  Each 
strives  earnestly  so  far  as  he  properly  can  in  his 
direction,  thus  tending  to  hold  the  scales  of  jus- 
tice in  equipoise.  Each  should  strive  zealously 
but  honorably  in  order  to  ensure  a  fair  trial. 
If  either  neglects  his  part  he  is  jeopardizing  the 
interest  of  his  client. 

There  are  some  judges  on  the  bench  who  look 
upon  themselves  simply  as  umpires  over  a  game 
'of  skill  between  the  lawyers  and  not  at  all  as 
the  means  of  dispensing  abstract  and  absolute 


INTRODUCTORY.  vii 

justice.  Certainly  before  such  judges,  who  are 
not  few,  the  lawyer  must  avail  himself  of  every 
technical  point  that  can  be  made  which  is  con- 
ducive to  the  success  of  the  client,  and  of  every 
legitimate  and  proper  advantage  that  his  skill 
enables  him  to  take. 


TKIAL   TACTICS. 

CHAPTER  I. 

SELECTION    OF   THE   COURT. 

ONE  of  the  lawyer's  first  and  most  impor- 
tant duties  is  to  choose  the  battleground. 
Where  there  is  a  choice  he  must  see  that 
his  client  gets  the  advantage.  Part  of  the  bat- 
tleground, it  may  be  said,  is  geographical  and 
part  chronological.  Hence  it  is  advisable  to 
go  to  battle  promptly  unless  in  the  nature  of  the 
case  delay  may  be  advantageous.  Litigation 
should  be  brought  early,  not  only  on  account  of 
the  statute  of  limitations,  which  may  bar  an 
action  altogether  if  it  is  brought  too  late,  but 
also  because  a  prompt  action  appeals  more  to 
the  court  which  tries  the  case,  and  to  the  jury 
if  there  is  a  jury.  If  a  case  is  delayed  in  a  law- 
yer's hands  the  assertion  may  afterwards  be 
effectively  made  on  the  trial  that  the  lawyer  and 
client  knew  there  was  no  case,  otherwise  they 
would  not  have  waited  so  long  in  bringing  the 
suit;  which  casts  a  suspicion  over  the  case  at 
once. 

1 


2  TRIAL  TACTICS. 

There  are  instances,  of  course,  where  delay 
is  advisable,  even  in  the  bringing  of  the  suit. 
An  illustration  may  be  a  case  that  proves  itself 
and  is  not  susceptible  of  ready  contradiction, 
or  a  case  that  is  all  documentary  and  can  be 
won  at  any  time  unless  it  is  overcome  with 
affirmative  evidence.  It  often  may  happen  that 
the  opponent  will  suffer  by  reason  of  the  long 
delay  because  he  loses  his  evidence.  His  wit- 
nesses may  get  away  from  him,  they  may  die, 
they  may  turn  hostile,  thus  if  the  litigation  is 
long  protracted  and  proves  itself  delay  may  be 
of  benefit.  This  is  a  cold  calculation  but  it  is 
used. 

A  lawyer's  duty,  when  a  case  is  brought  to 
him,  is  to  make  what  the  doctors  call  a  careful 
diagnosis  of  it.  This  means  that  he  must  under- 
stand the  case  thoroughly,  know  exactly  what 
the  trouble  is  with  his  client,  what  his  case  is 
about,  and  as  accurately  as  possible  what  his 
opponent's  case  is  about.  If  he  is  to  be  the 
leader  he  must  understand  his  client's  case  and 
his  opponent 's  defense,  or  if  the  reverse  is  true, 
his  opponent's  case  and  his  client's  defense. 
Having  analyzed  that  very  carefully,  having  a 
correct  diagnosis,  the  next  step  is  to  make  a 
prognosis,  to  use  another  medical  term.  These 
are  as  important  in  law  as  in  medicine  and  it  is 
an  attorney's  duty  to  attend  to  them  just  as 


SELECTION  OF  THE  COURT.          3 

much  as  it  is  the  duty  of  the  physician.  The 
physician  is  often  mistaken  in  inferences.  He 
must  not  guess,  he  must  know;  if  he  acts  on 
assumptions  he  may  make  a  fatal  error.  A  law- 
yer must  look  over  his  client's  case  or  defense 
and  must  know  absolutely  where  the  trouble  is 
and  where  it  is  going  to  be,  in  order  to  act  under- 
standingly. 

Lawyers  cannot  rely  simply  upon  the  knowl- 
edge of  the  books.  They  must  draw  constantly 
upon  experience  and  upon  reasoning  power. 
They  must  not  rely  too  confidently  upon  a  deci- 
sion or  set  of  decisions  nor  be  too  much  alarmed 
by  adverse  decisions.  They  must  analyze  back 
of  decisions  and  see  what  the  law  really  is.  This 
is  well  illustrated  by  a  recent  case  which  the 
judge  decided  in  a  certain  way,  insisting  that  he 
was  bound  by  a  prior  decision.  Upon  appeal 
the  cause  was  reversed,  that  court  saying  as  to 
the  prior  decision  simply  "It  is  clearly  erroneous 
in  the  text." 

The  elements  then  of  the  various  matters  and 
how  best  to  make  use  of  them  call  for  earnest 
consideration.  Law  books  may  be  likened  to 
cook  books.  From  the  same  recipe  and  the  same 
ingredients  one  cook  may  produce  a  very  delect- 
able result  but  another  produce  something  not 
fit  to  eat,  because  the  one  has  had  experience 
and  the  other  has  not. 


4  TRIAL  TACTICS. 

At  times  a  lawyer  gains  a  great  reputation, 
which  is  of  course  the  legitimate  ambition  of 
every  man,  through  being  wise  in  the  choice  of 
his  clientage.  It  is  said  of  Abraham  Lincoln 
that  he  would  not  take  a  case  unless  he  felt  con- 
fident that  his  side  was  the  right  one.  He  would 
examine  the  case  confidentially  when  his  clients 
and  their  witnesses  came  to  his  office  and  if  he 
felt  satisfied  that  the  case  was  doubtful  he  would 
not  take  it.  He  had  to  be  satisfied  that  it  was 
a  winning  case  before  he  would  accept  it.  Nat- 
urally under  these  circumstances  the  chances 
were  in  his  favor  and  he  would  win  because  in 
the  course  of  time  the  jury  began  to  think  the 
case  was  right  because  Lincoln  took  it,  and  they 
would  find  for  Lincoln.  Possibly  in  the  small 
community  in  which  Lincoln  practiced  in  those 
days  a  man  might  afford  to  take  and  even  find  it 
profitable  to  take  that  position.  But  it  would 
be  a  very  impracticable  one  in  a  large  jurisdic- 
tion, say  of  two  million  people,  because  a  lawyer 
might  refuse  clients  for  twenty  years  before  any 
one  discovered  that  a  case  which  he  accepted 
must  in  its  nature  be  just.  Further  than  that, 
it  is  the  custom  in  some  jurisdictions  to  ask  the 
jurors  whether  they  know  or  ever  have  known 
or  even  have  heard  of  the  lawyers.  If  any  of 
them  answers  in  the  affirmative  he  is  rejected. 
Circumstances  alter  cases,  and  a  lawyer  under 


SELECTION  OF  THE  COURT.         5 

these  conditions  manifestly  could  not  take  the 
position  of  rejecting  every  case  except  those 
which  he  is  bound  to  win. 

It  is  not  a  lawyer's  right  or  duty  to  take  an 
improper  case — that  is,  a  case  which  is  not  law- 
ful and  honorable  in  every  respect.  It  is  his 
right  and  his  duty  to  take  any  proper  case,  no 
matter  if  it  is  indeed  very  doubtful.  And  in  the 
field  of  criminal  law  the  weight  of  authority  and 
of  the  best  reasoners  is  that  it  is  a  lawyer's  duty 
to  defend  the  accused,  if  called  upon  by  the 
latter  so  to  do  or  if  appointed  by  the  Court,  even 
if  the  lawyer  himself  believes  the  accused  to 
be  guilty.  The  defendant  in  a  criminal  case  is 
entitled  to  a  fair  trial  under  the  law  of  the  land 
and  it  is  a  lawyer's  duty  to  take  his  case  if  for 
no  other  reason  than  to  prevent  the  possibility 
of  an  innocent  person  being  convicted.  There 
are  cases  on  record  of  persons  who  have  con- 
fessed guilt  who  in  fact  were  innocent,  who  have 
been  proved  by  absolutely  incontrovertible  tes- 
timony to  have  been  innocent  at  the  time  they 
confessed  guilt.  So  it  is  a  matter  of  principle 
to  take  a  criminal  case,  but  in  civil  cases  there 
ought  of  course  to  be  a  fair  position  to  advocate 
for  the  plaintiff-  or  for  the  defendant,  otherwise 
it  is  not  the  duty  of  the  lawyer  to  go  on  with  it. 

So  long  as  a  case  can  be  fairly  and  honorably 
presented,  even  if  it  be  very  doubtful  as  to  the 


6  TRIAL  TACTICS. 

result,  it  is  the  duty  of  a  lawyer  to  take  it.  The 
complications  of  our  system  leave  it  by  no  means 
clear  in  advance  who  is  in  the  right  of  the  case. 
It  is  only  by  means  of  a  fair  and  honorable  trial 
in  the  manner  indicated,  with  an  attorney  on 
each  side  doing  his  best  to  develop  that  side  of 
the  case,  that  the  correct  result  may  ultimately 
be  produced,  and  so  the  principle  of  refusing  a 
case  unless  the  lawyer  is  sure  he  is  going  to  win 
is  inapplicable. 

A  lawyer  might  be  held  negligent  if  he  did  not 
use  these  fair  and  proper  advantages  which  have 
been  referred  to  just  as  he  might  be  held  negli- 
gent if  he  did  not  interpose  a  legal  and  proper 
plea.  Recently  a  case  was  affirmed  because  the 
lawyers  had  made  a  technical  mistake  in  the  bill 
of  exceptions  which  prevented  the  case  from  be- 
ing reviewed,  and  it  was  claimed  that  the  law- 
yers should  pay  the  amount  of  the  judgment — 
some  $12,000 — because  they  had  not  protected 
their  client.  The  time  may  come  when  the  re- 
quirements upon  the  lawyers  will  go  even 
beyond  such  plain  things  as  pleas  that  ought  to 
be  put  in  and  the  proper  way  to  prepare  a  bill  of 
exceptions  and  errors  in  them  may  hold  a  law- 
yer for  negligence. 

What  kind  of  action  is  to  be  brought  depends 
greatly  upon  the  nature  of  the  case.  Sometimes 
there  are  three  or  four  alternatives  open.  Suit 


SELECTION  OF  THE  COURT.         7 

may  be  brought  in  the  Federal  Court  or  in  the 
State  Court,  in  chancery  or  at  law;  before  cer- 
tain State  judges  or  Courts  or  before  others;  or 
again,  on  behalf  of  his  client  a  lawyer  may  re- 
frain from  suing  at  all  but  may  lie  by  and  wait 
until  the  other  party  sues  him.  All  these  things 
have  to  be  carefully  analyzed  and  a  mistake  in 
any  one  of  them,  while  not  so  apparent  as  other 
possible  mistakes,  will  reveal  itself  to  an  ex- 
perienced critic. 

In  determining  the  choice  of  the  battleground 
there  are  various  considerations  which  must  be 
borne  in  mind.  The  first  thing  to  be  decided 
is  whether  to  go  into  any  court  at  all.  Suppose 
a  litigation  in  regard  to  the  ownership  of  an 
article.  It  is  a  homely  saying  but  true  that 
" possession  is  nine  points  of  the  law,"  so  the  side 
that  has  possession  of  the  article  would  do  well 
to  stay  out  of  court  until  they  are  brought  in. 
There  are  instances  where  to  sustain  the  burden 
of  proof  is  very  difficult  for  the  litigant,  perhaps 
impossible.  The  lawyer  who  can  arrange  to  put 
the  burden  of  proof  upon  his  opponent  has  a 
great  advantage.  Take  a  case  where  people  per- 
ish in  a  common  disaster.  A  man  and  wife  go 
to  sea,  the  vessel  sinks  and  both  are  drowned. 
The  property  belongs  to  the  man.  If  he  died 
first  the  wife  gets  the  property  and  her 
heirs  inherit  it;  but  if  the  wife  died  first  the 


8  TRIAL  TACTICS. 

man's  heirs  get  it.  In  a  case  like  this  whoever 
gets  the  property  keeps  it,  compelling  the  other 
side  to  sue  for  it  and  establish  their  claim  by 
proof,  which  is  frequently  an  impossible  thing  to 
do. 

Sometimes,  however,  it  is  of  advantage  to 
allow  the  other  side  to  take  the  property  and  to 
sue,  because,  as  will  be  developed  more  fully 
later,  the  plaintiff  has  a  great  advantage  in  jury 
cases  by  reason  of  the  last  speech  to  the  jury, 
which  is  a  most  forceful  weapon.  In  criminal 
cases,  especially,  it  is  probable  that  if  the  de- 
fendant's lawyer  had  the  last  speech  to  the  jury 
there  would  seldom  be  a  conviction.  At  all 
events  it  would  have  to  be  a  very  sure  case.  In 
any  of  the  ordinary  strong  fighting  cases  the 
defendant  would  probably  win  if  his  lawyer  had 
the  last  talk.  So  the  last  speech  to  the  jury 
makes  a  wonderful  difference. 

The  following  case  of  a  man  who  had  500  head 
of  cattle  and  who  gave  a  mortgage  covering  400 
of  them  to  one  man  and  to  another  a  mortgage 
covering  450  of  them  was  an  instance  of  this 
advantage.  A  controversy  resulted  and  the 
man  having  the  first  mortgage  was  wise  enough 
to  allow  the  other  one  to  seize  the  cattle  under 
his  mortgage  and  go  with  them.  The  whole  fight 
was  eventually  on  the  identification  of  the  cattle, 
which  is  something  very  difficult  to  prove  and 


SELECTION  OF  THE  COURT.         9 

upon  which,  of  course,  ultimately  many  wit- 
nesses had  to  be  called,  developing  much  circum- 
stantial evidence  as  well  as  direct  evidence.  So 
A  allowed  B  to  take  the  cattle  and  go  away  with 
them.  Then  A  sued  in  trover,  which  gave  him 
the  last  speech  since  he  was  the  plaintiff  and  in 
that  last  speech,  by  reason  of  •  the  shrewdness 
and  eloquence  of  his  counsel,  he  discounted  B's 
witnesses  and  won  the  case ;  whereas  if  the  situa- 
tion had  been  reversed,  if  A  had  taken  the  cattle 
and  B  had  sued  in  trover  and  had  had  the  last 
speech  he  doubtless  would  have  won  the  verdict. 

So  the  shaping  of  the  issue  on  a  jury  trial  to 
see  that  his  client  gets  the  last  speech  is  one  of  a 
lawyer's  most  important  moves.  To  watch 
that,  among  other  matters  of  study,  cannot  be 
impressed  too  forcibly  upon  the  young  practi- 
tioner. There  are  many  instances  on  record 
where  what  was  plainly  the  inferior  side  in  right 
and  law  and  morals  and  logic  won  because  the 
lawyer  spoke  last  to  the  jury. 

Another  matter  for  consideration  is  the  ques- 
tion whether  to  go  into  a  court  of  law  which  has 
a  jury  or  into  a  court  of  chancery  which  has  no 
jury. 

It  is  a  well-known  precept  of  practice  that  a 
case  which  appeals  to  the  sympathies  should  be 
shaped  to  get  before  a  jury  while  a  case  or  de- 
fense which  repels  the  sympathies  should  be  kept 


10  TRIAL  TACTICS. 

away  from  the  jury.  An  illustration  will  show 
how  important  this  may  be.  There  was  a  case 
of  an  old  soldier  who  had  bought  some  $400 
worth  of  merchandise  and  had  paid  all  but  $50. 
Not  having  paid  that,  his  creditor  obtained  a 
capias  judgment  before  a  justice  of  the  peace 
and  threw  him  into  jail.  Naturally  much  sym- 
pathy would  be  with  the  old  man,  because  any- 
body would  consider  it  hard  to  capias  him  on  a 
claim  of  $50  after  he  had  paid  $350.  The  debtor 
stayed  in  jail  three  or  four  days,  became  crip- 
pled from  rheumatism,  obtained  his  release  by 
writ  of  habeas  corpus  and  sued  for  $25,000  dam- 
ages. This  was  the  case  at  law  and  when  the 
lawyers  came  to  defend  the  creditor  in  the  dam- 
age suit  they  discovered,  to  their  consternation, 
that  the  debtor  had  been  in  jail  without  any 
jurisdiction  because  the  summons  before  the  jus- 
tice under  which  the  execution  was  rendered 
failed  to  show  service — that  is,  a  service  appear- 
ed on  the  summons  but  it  had  been  stricken  out. 
Hence,  as  it  stood,  there  was  no  service.  The 
case  was  there,  $25,000,  because  the  debtor  had 
been  in  jail  wrongfully.  The  execution  was 
wrong  because  there  was  no  proper  judgment; 
the  judgment  was  bad  because  there  was  no 
service  of  summons  as  the  record  stood.  The 
creditor's  attorneys  in  the  damage  suit  of  course 
were  going  to  prove  that  there  had  been  a  service 


SELECTION  OF  THE  COURT.       11 

of  the  summons  but  that  someone  had  stricken 
it  out.  This  they  would  have  had  to  prove  to  the 
satisfaction  of  the  jury,  which  would  have  been 
a  very  difficult  thing  to  do  because  their  sym- 
pathy for  the  debtor  would  have  been  so  intense 
that  they  would  disregard  the  evidence.  What 
to  do  in  such  circumstances  was  the  question,  and 
the  answer  was  to  try  to  get  the  case  into  chan- 
cery. So  the  creditor's  lawyer  went  into  chan- 
cery on  the  theory  that  the  return  of  the  sum- 
mons was  a  public  record,  that  some  intermed- 
dler  had  defaced  it  and  that  chancery  had  juris- 
diction to  restore  such  record.  Before  the 
chancellor,  there  being  no  jury,  and  the  chancel- 
lor not  being  much  influenced  by  his  sympathies, 
the  creditor  had  a  chance  and  actually  got  his 
public  record  restored.  Having  got  it  restored 
in  chancery  it  was  res  adjudicata  in  the  law  suit. 
The  debtor  could  no  longer  say  there  was  no 
service.  Being  bound  to  admit  there  was  service 
of  course  there  was  proper  judgment ;  and  being 
a  proper  judgment  there  was  a  proper  execu- 
tion ;  and  the  old  man  had  no  case. 

The  issue  to  be  tried  also  admits  of 
other  manoeuvring  to  get  the  lawful  and 
proper  advantage.  Suppose,  for  instance, 
that  the  defendant's  lawyer  has  a  defense 
which  is  entirely  affirmative.  His  client  is 
sued  for  merchandise  sold  and  delivered; 


12  TRIAL  TACTICS. 

it  is  admitted  that  the  client  received  the 
merchandise  and  that  it  actually  was  worth 
all  that  he  is  being  sued  for  but  the  defense 
is  that  he  has  already  paid  for  it,  while  the  other 
side  claims  that  he  did  not  pay.  Under  those 
circumstances  the  defendant's  lawyer  would  be 
guilty  of  an  error  if  he  should  interpose  "the 
general  issue,"  because  in  interposing  the 
general  issue  he  would  give  the  plaintiff  the  right 
to  the  opening  and  the  close  and  thereby  lose  the 
advantage  which  has  been  referred  to  before. 
If  the  general  issue  is  not  interposed  but  simply 
the  specific  facts,  admitting  the  entire  claim  of 
the  plaintiff  but  asserting  affirmatively  that  the 
debt  has  been  paid  or  that  there  was  damage  be- 
cause the  goods  were  not  up  to  the  sample  or  any 
other  such  affirmative  defense,  if  the  case  is  pro- 
perly framed  when  the  jury  is  summoned  the 
defendant's  lawyer  should  at  once  say  that  he 
tenders  the  jury.  This  gives  him  the  lead  and 
if  he  claims  it  properly  he  gets  the  open  and 
close  and  so  obtains  the  advantage. 

The  best  place  in  which  to  bring  a  litigation 
may  involve,  among  other  considerations,  the 
state  in  which  suit  is  to  be  brought.  For  in- 
stance a  person  living  in  Hoboken  with  his  busi- 
ness in  the  City  of  New  York,  or  a  man  living  in 
Chicago  who  is  in  business  in  Hammond,  In- 
diana, may  be  found  going  back  and  forth.  The 


SELECTION  OF  THE  COURT.       13 

laws  of  some  states  may  be  more  favorable  than 
those  of  other  states  in  a  particular  kind  of 
action,  and  in  choosing  the  battleground  it  may 
be  found  advisable  to  bring  the  litigation  in  the 
one  state  rather  than  in  the  other.  It  may  be 
advisable  to  bring  the  litigation  in  the  Federal 
Court  rather  than  in  the  State  Court  but  the 
client  may  not  be  in  a  position  to  litigate  in  the 
Federal  Court  because  he  may  be  a  citizen  of 
the  state  in  which  his  opponent  is  also  a  citizen 
and  hence  unable  to  go  into  the  Federal  Court. 
There  are  cases  in  which  a  client  under  these 
circumstances  has  moved  into  another  state  and 
acquired  a  residence  in  that  state  so  that  he 
could  appear  as  a  litigant  in  the  Federal  Court 
and  jurisdiction  was  not  denied.  It  might  be 
considered  questionable  for  a  man  to  move  into 
another  state  simply  that  he  may  become  a  citi- 
zen of  that  state  and  sue  in  the  Federal  Court, 
yet  it  must  be  admitted  that  if  he  actually  moves 
nobody  can  attack  the  motives  which  induce  him 
to  move.  One  man  may  go  to  Colorado  on  ac- 
count of  the  climate;  another  man  may  prefer 
the  federal  judicial  system  to  that  of  the  state. 
It  is  very  doubtful  whether  the  motive  for  re- 
moval can  be  attacked  in  any  court. 

These  advantages  to  be  gained  may  seem  very 
technical  and  shrewd  but  it  is  to  be  questioned 
whether  they  are  any  more  technical  and  shrewd 


14  TKIAL  TACTICS. 

than  other  points  in  the  law — the  statute  of 
limitations  for  instance,  and  other  advantages 
that  have  been  mentioned,  which  not  only 
should  be  taken  but  which  must  be  taken  unless 
a  lawyer  would  subject  himself  to  criticism 
for  negligence.  So  an  important  consideration 
is  the  selection  of  the  place  in  which  to  bring  the 
suit.  In  a  case  reported  some  years  ago  a  bank 
of  the  City  of  Chicago  brought  suit  in  Connecti- 
cut involving  some  $30,000  or  $40,000  and  the 
question  arose  whether  a  party,  who  in  this  case 
happened  to  be  a  married  woman,  could  be  held 
liable.  In  some  states  it  is  very  doubtful 
whether  a  married  woman  can  be  held  for  a  note 
given  for  an  indebtedness  of  her  husband.  Some 
states  solve  that  question  more  technically  than 
others.  Sometimes  the  rules  of  evidence  in  one 
state  are  different  from  the  rules  of  evidence 
in  another  state.  In  certain  jurisdictions  the 
wife  cannot  be  a  witness  at  all  in  any  litigation 
against  her  husband ;  in  other  states  a  wife  may 
be  a  witness  as  to  some  subject  matter,  for  in- 
stance whatever  occurred  before  her  marriage  to 
him;  but  she  cannot  be  a  witness  in  regard  to 
transactions  that  occurred  during  the  time  she 
was  married  to  him.  In  other  states,  again,  she 
may  be  a  witness  in  regard  to  transactions  that 
occurred  after  she  was  divorced  from  him  if 
there  happens  to  be  a  divorce ;  but  in  some  states 


SELECTION  OF  THE  COURT.       15 

she  cannot  testify  concerning  anything  that  oc- 
curred at  any  time,  even  though  she  is  called  as 
a  witness  after  divorce.  This  question  may  be 
very  important  if  the  litigation  rests  on  the  testi- 
mony of  the  wife,  so  if  that  kind  of  evidence  is 
to  be  counted  upon  it  would  be  advisable  to 
ascertain  what  the  law  is  in  the  different  states 
if  there  is  a  choice  of  states. 

Whether  the  form  of  action  should  be  law  or 
equity,  has  to  be  considered.  There  are  some 
cases  where  a  suit  at  law  cannot  be  won  because 
of  lack  of  evidence,  whereas  a  similar  contention 
might  be  won  in  equity.  That  is,  some  matters 
can  be  brought  in  equity  which  cannot  be  brought 
in  law.  The  ordinary  definition  of  equity  is  that 
it  is  a  system  of  jurisprudence  which  gives  a 
remedy  where  the  law  is  defective.  But  that  is 
not  a  correct  definition  and  is  apt  to  mislead. 
Equity  gives  no  remedy  where  the  common  law 
is  defective  because  the  very  things  that  give  no 
relief  in  law  fail  to  relieve  in  equity.  The 
proper  definition  is  that  equity  gives  a  method 
of  relief  where  the  law  would  give  relief  if  it 
could,  but  fails  because  it  is  defective  in  its 
method.  Take  a  very  simple  illustration. 

A  homeless  man  is  sitting  on  the  doorstep  of 
a  rich  man  and  is  slowly  freezing  to  death;  the 
rich  man  refuses  to  let  him  in  to  warm  and  the 
poor  man  is  crippled  by  the  cold.  If  he  sues 


16  TKIAL  TACTICS. 

at  law  he  cannot  win  because  there  is  no  action 
that  he  has  a  right  to  win.  No  matter  how  hard- 
hearted or  cruel  the  other  man  man  was  the  poor 
man  had  no  right  to  go  in  and  hence  he  could 
not  recover  at  law.  But  neither  could  he  sue  in 
equity.  He  has  no  right  and  having  no  right  he 
cannot  get  any  remedy  in  either  forum.  If  he 
had  a  right  and  through  defect  in  the  method 
could  not  find  it  in  law  he  would  have  a  remedy 
in  equity.  By  the  phrase  right  in  law  is  meant 
right  in  a  broad  sense — not  in  the  technical 
sense  of  the  common  law — in  the  broad  sense  of 
right  of  action,  among  the  English  speaking  peo- 
ple, who  have  derived  that  from  many  minor 
sources,  the  decisions  of  the  courts,  the  com- 
mon understanding,  the  Bible,  the  civil  law,  and 
many  other  places  which  are  supposed  to  be  the 
sources  of  justice. 

A  fair  illustration  of  an  appeal  to  equity  may 
be  given.  A  man  is  a  tenant  of  a  house  and  it 
is  agreed  that  he  shall  have  a  new  lease.  He 
expends  a  large  amount  of  money  on  the  house 
on  the  promise  of  a  new  lease  but  the  landlord 
at  the  last  minute,  fails  to  give  it  to  him  and 
brings  a  suit  at  law  to  eject  him.  At  law  the 
tenant  has  no  remedy  and  he  would  be  put  out. 
He  is  not  allowed  to  testify  that  he  ought  to  have 
a  lease  because  that  is  a  pure  matter  of  equity. 
But  he  goes  into  equity  and  gets  an  injunction 


SELECTION  OF  THE  COURT.       17 

against  the  landlord  so  that  the  landlord  cannot 
put  him  out.  On  general  principles  of  right 
and  equity  he  has  a  right  to  a  lease.  He  cannot 
enforce  that  right  at  law  but  he  can  in  chancery. 

In  replevin  it  is  the  practice  very  often  for  a 
plaintiff,  when  it  conies  to  the  trial  of  his  case, 
to  allow  himself  to  be  non-suited.  The  statute 
says  he  may  do  so  and  when  he  is  sued  on  the 
bond  he  sets  up  the  defense  of  title,  but  the  dis- 
advantage of  that  is  that  his  opponent  obtains 
the  first  and  the  last  speech  in  the  suit  on  the 
bond,  whereas,  if  he  tries  his  replevin  suit  he 
obtains  the  first  and  last  speech  himself. 

Suppose  a  case  in  which  a  man  has  obtained 
a  large  amount  of  property  by  alleged  false  pre- 
tenses. Now,  fraud  is  hard  to  prove  and  must 
frequently  be  shown  by  circumstantial  evidence. 
The  man  who  commits  a  fraud  is  not  very  apt 
to  publicly  proclaim  it,  and  his  associates  are 
not  very  apt  to  do  so.  In  such  case  it  is  of  the 
utmost  importance  to  get  the  last  speech  to  the 
jury,  because  the  man  who  has  the  last  speech 
can  put  the  circumstances  in  the  most  favorable 
light  for  his  own  side  and  can  attack  the  evi- 
dence of  the  other  party.  Ordinarily  it  would 
be  advisable,  then,  to  stand  upon  a  replevin  suit 
and  not  be  non-suited. 

Another  thing  which  is  advisable,  at  least  in 
jurisdictions  which  have  a  short  cause  calendar, 


18  TRIAL  TACTICS. 

is  to  retain  the  suit  for  the  plaintiff  so  long  as 
possible  rather  than  to  abandon  the  suit  and  be- 
come the  defendant. 

Many  cases  involving  a  considerable  amount 
are  capable  of  trial  on  short  cause.  For  in- 
stance, if  the  right  of  action  is  on  a  note  or  on  a 
lease,  some  document  that  proves  itself,  the 
plaintiff  can  put  his  case  in  in  two  or  three  min- 
utes and  try  it  within  the  hour  to  a  certainty, 
while  the  defendant  may  find  himself  greatly 
distressed  if  he  is  in  short  cause. 

The  plaintiff,  again,  in  some  jurisdictions  has 
the  advantage  of  being  able  to  experiment  with 
his  case.  He  can  try  it  almost  up  to  the  finish 
and  if  he  finds  himself  in  much  distress  he  can 
try  it  over  again.  In  some  jurisdictions  this 
cannot  be  done ;  neither  man  is  allowed  to  aban- 
don his  case,  but  in  others  the  plaintiff  can  bring 
it  on  for  trial ;  he  can  get  all  his  testimony  in ;  he 
can  get  all  his  opponent's  witnesses  in,  cross-ex- 
amine them,  find  out  all  that  they  know,  and  if 
he  sees  there  is  any  danger  of  losing,  take  a  non- 
suit and  commence  anew.  This  cannot  be  done, 
however,  if  the  statute  of  limitations  has  run 
against  the  case ;  which  must  be  guarded  against. 

There  is  a  great  difference  between  taking  a 
non-suit  and  suffering  a  non-suit.  If  a  lawyer 
is  non-suited — that  is,  if  the  non-suit  is  forced 
upon  him  by  the  court,  he  can  commence  over 


SELECTION  OF  THE  COURT.        19 

again  in  one  year,  provided  that  the  statute  of 
limitations  has  at  that  time  already  run.  Some 
statutes  are  peculiarly  worded,  saying  that  if  in 
any  of  the  actions  specified  in  the  Act  on  Limi- 
tations the  plaintiff  be  non-suited  and  if  the 
time  limited  for  the  bringing  of  such  action 
shall  have  expired  during  the  pending  of  such 
suit,  then  a  new  suit  may  be  brought  within  a 
year. 

If  the  period  of  limitation  has  not  yet  run 
then  that  statute  does  not  apply.  Suppose  a 
man  has  an  action  which  is  barred  in  five  years 
and  is  trying  the  case  at  the  end  of  four  years, 
eleven  months  and  twenty-five  days,  and  is  non- 
suited. He  does  not  have  a  year  extra  to  come 
in ;  he  has  only  five  days  left  because  the  statute 
does  not  apply.  It  applies  only  when  the  plain- 
tiff is  non-suited  after  the  five  years  have  ex- 
pired. Action  for  death  of  a  person  is  not 
always  clearly  defined  under  this  one  year  privi- 
lege because  such  action  is  occasionally  not  re- 
ferred to  at  all  in  an  Act  of  Limitations; 
whereas  the  one  year  privilege  seems  limited  to 
that  Act. 

Another  case  where  the  plaintiff  can  experi- 
ment may  be  given.  Suppose  the  jury  is  waived 
and  the  plaintiff  tries  the  case  and  finds  that  the 
judge  is  against  him.  The  judge  expresses  him- 
self fully  and  clearly  and  is  about  to  enter  a  de- 


20  TRIAL  TACTICS. 

cision  against  the  plaintiff;  the  plaintiff  then 
has  the  right  to  take  a  non-suit  and  it  may  be 
advisable  for  him  to  do  so,  unless  he  is  barred 
by  limitations,  and  he  is  ready  to  commence  over 
again  with  possibly  a  better  result  than  before. 

The  kind  of  action  to  be  brought  depends 
much  upon  the  kind  of  case.  Take  for  instance 
a  case  of  domestic  infelicity  in  which  the  woman 
is  the  plaintiff.  If  a  divorce  suit  is  decided 
upon  it  comes  before  the  chancellor,  and,  under 
some  systems,  with  a  jury.  As  a  rule  the  sym- 
pathies of  the  jury  are  with  the  woman  and  it  is 
altogether  likely  that  it  is  advisable  to  bring  the 
suit  in  divorce  rather  than  for  separate  main- 
tenance. In  a  separate  maintenance  suit  there 
is  no  provision  for  a  jury.  The  chancellor  may 
call  one  if  he  wants  to  but  he  does  not  have  to 
do  this  and  is  not  bound  by  the  result  if  he  does. 
But  with  divorce  either  side  may  call  for  a  jury. 

Common  law  marriages  are  among  the  cases 
which  appeal  peculiarly  to  the  sympathies  of  a 
jury,  especially  where  the  parties  have  lived  to- 
gether for  some  considerable  time  and  where 
children  have  been  born  as  a  result  of  the 
union.  A  small  amount  of  evidence  will  satis- 
fy the  jury  that  a  woman  is  the  wife  by  common 
law  marriage,  whereas  the  chancellor  is  not  so 
apt  to  be  swayed  by  the  emotions.  He  has  been 
in  court  all  his  life  and  has  become  rather  case 


SELECTION  OF  THE  COURT.       21 

hardened.  It  would  undoubtedly  be  a  grave 
mistake,  where  the  claim  of  the  wife  is  provable 
by  circumstantial  evidence  and  where  the  base 
of  it  rests  so  much  on  sympathies,  to  bring  sep- 
arate maintenance  rather  than  divorce,  for  the 
reason  above  stated,  that  one  is  tried  without  a 
jury  and  the  other  is  tried  with  a  jury. 

The  choice  of  the  judge  of  the  court  is  an  im- 
portant consideration  in  bringing  litigation.  In 
every  large  city  there  are  numerous  branches  of 
the  court  and  the  careful  practitioner  must  ob- 
serve constantly  and  learn  the  personal  peculi- 
arities of  the  various  judges.  Some  judges  for 
instance  are  prejudiced  against  divorce,  some 
approve  of  it.  Some  are  more  sympathetic  and 
inclined  to  favor  the  woman,  others  are  more 
severe  and  what  is  commonly  called  cold- 
blooded. Some  judges,  again,  are  known  to  be 
very  indulgent  in  habeas  corpus  cases;  whereas 
with  other  judges  it  is  difficult  to  sustain  the 
writ.  All  these  are  points  which  must  be  con- 
sidered if  a  lawyer  wants  to  do  his  duty  by  his 
client.  A  change  of  venue  may  be  needed  by 
the  defendant — not  only  from  one  judge  to  an- 
other but  sometimes  from  one  county  to  another. 
It  is  well  to  inquire  carefully  into  the  temper  of 
the  people  and  of  the  judges  before  the  assign- 
ment of  the  litigation  is  made. 

On   matters   concerning  real   estate   for  in- 


22  TRIAL  TACTICS. 

stance,  a  subject  on  which  a  great  deal  might  be 
said,  a  few  illustrations  may  be  given.  A  right 
to  a  piece  of  real  estate  may  be  tested  by  bring- 
ing ejectment  against  the  party.  That  would 
be  an  action  at  law  with  a  jury.  There  are  some- 
times questions  of  titles  and  questions  of  inher- 
itance which  appeal  to  the  jury.  The  proof  of 
heirship,  the  proof  that  the  client  is  an  heir  in 
some  way,  may  involve  a  great  many  affairs  in  a 
family  and  in  their  ancestry,  and  sometimes  the 
proof  is  very  difficult  for  the  claimant  of  prop- 
erty. So  it  may  be  entirely  advisable  to  have  it 
submitted  to  the  jury  for  the  reasons  already 
given. 

Again,  to  get  a  decision  as  to  real  estate  in 
which  the  client  claims  a  share  of  the  property, 
partition  may  be  brought,  which  is  a  chancery 
proceeding,  with  of  course  no  jury.  The  client's 
claim  is  tested  out  by  a  bill  in  chancery  which 
constitutes  partition.  Practically  it  is  well  to 
be  prompt  when  bringing  the  partition,  because 
under  some  statutes  the  lawyer  who  starts  the 
suit  gets  a  fee  from  the  estate  which  gives  his 
client  that  much  profit,  whereas  if  he  merely 
represents  his  clients  as  defendants  it  is  not  cer- 
tain whether  any  fee  will  come  out  of  the  prop- 
erty and  he  has  to  look  to  his  client  for  his  fee. 
The  chances  are  that  he  would  not  pay  so  much 
as  the  lawyer  would  be  entitled  to  get,  and  so 


SELECTION  OF  THE  COURT.       23 

much  as  he  would  cheerfully  pay  if  it  came  out 
of  the  property. 

Again  under  some  statutes  property  can  be  di- 
vided by  petition  for  partition.  There  are  pro- 
visions that  if  a  client  owns  a  share  of  real 
estate  and  wants  the  property  sold  and  the 
money  divided  or  the  property  itself  divided,  if 
it  is  capable  of  division,  the  client  has  a  right  to 
petition  the  court  for  a  division.  That  is  a  law 
procedure  not  a  chancery  procedure,  and  all  the 
issues  in  that  procedure  would  be  tried  by  jury. 
The  steps  are  almost  identical  with  those  for 
partition;  but  the  ordinary  course  of  law  cases 
is  followed  and  it  therefore  would  be  a  jury 
case. 

So  again  the  client  may  be  a  woman  who  has 
a  claim  to  property  for  dower  and  she  may  bring 
litigation  to  set  off  her  dower ;  or  the  client  may 
have  a  claim  to  real  estate  and  procedure  might 
be  brought  under  the  Torrens  Act  for  the  regis- 
tration of  title;  or  in  Chicago  under  the  Burnt 
Record  Act,  a  mode  of  proceedings  in  the  courts 
since  the  Great  Fire.  If  the  client  has  a  title 
to  real  estate  he  may  proceed  under  the  Burnt 
Record  Act,  and  seek  to  preserve  upon  the  rec- 
ords the  evidence  of  that  title.  That  proceeding 
does  more:  it  finds  whether  the  client  owns  the 
property  itself  and  bars  other  claimants,  if 
there  are  any. 


24  TRIAL  TACTICS. 

Or  again  the  client  may  bring  proceeding  in 
the  way  of  quieting  title,  or  proceeding  may  be 
brought  in  the  Probate  Court  that  the  property 
may  be  sold.  In  the  course  of  that  proceeding 
it  is  laid  down  that  the  various  persons  who 
think  they  have  claims  against  the  property 
may  be  brought  in  and  may  be  compelled  to 
test  out  the  matter  there. 

So  there  are  six  or  seven  different  remedies 
and  it  must  be  decided  by  very  close  deliberation 
and  a  very  careful  analysis  of  the  statute  in  each 
case  provided,  which  one  would  be  the  best. 

There  is  still  one  more  way  of  testing  the  right 
to  property.  For  instance,  after  the  death  of 
a  man  a  woman  who  claims  to  be  his  widow  ap- 
pears and  asks  for  what  is  called  the  widow's 
allowance  or  award,  which  means  the  support 
of  the  widow  and  children  for  one  year.  Some 
one  else  may  come  in  and  claim  that  this  woman 
is  not  the  widow  but  that  another  one  is.  Some- 
times there  are  several  widows.  This  means  a 
contest  which  is  heard  in  an  informal  way  in  the 
Probate  Court  and  the  result  is  sometimes  ob- 
tained in  a  very  summary  manner.  Lawyers 
may  pay  very  little  attention  to  whether  the 
woman  should  have  the  year's  allowance  or  not, 
but  it  may  form  res  adjudicata — that  is,  it  may 
be  a  decision  which  right  or  wrong  may  after- 


SELECTION  OF  THE  COURT.       25 

wards  obstruct  the  client  in  litigation  involving 
the  same  subject  matter. 

The  action  of  account  is  a  law  action,  whereas 
an  action  to  obtain  an  accounting  is  a  chancery 
action.  The  choice  may  be  found  to  be  advan- 
tageous to  one  side  or  the  other. 

The  validity  of  a  mortgage  may  be  tested 
either  by  foreclosure  of  the  mortgage  or  by 
bringing  ejectment  based  on  the  mortgage.  It 
can  readily  be  told  whether  or  not  the  case  is 
one  appealing  to  the  sympathies.  Suppose  that 
some  poor  woman  has  invested  the  hard  earned 
savings  of  a  lifetime  in  a  mortgage  and  it  is 
denied  that  the  mortgage  is  valid  and  a  litiga- 
tion ensues.  If  she  goes  into  chancery,  with  the 
many  fine  and  sometimes  technical  doctrines  of 
chancery  (the  saying  about  coming  into  chan- 
cery with  clean  hands  is  well  known),  such  a 
claimant  may  have  a  good  deal  of  trouble ;  but  if 
she  goes  in  her  own  simple  way  before  a  jury, 
the  jury  will  probably  find  in  her  favor.  She 
can  test  that  mortgage  by  bringing  ejectment 
and  having  obtained  that  decision  it  would  be 
res  adjudicata  if  later  she  brings  a  bill  to  fore- 
close the  mortgage. 

The  advantage  of  being  the  beginner  of  the 
suit  is  very  marked  in  many  cases.  Suppose  a 
man  owns  a  lot  and  hires  a  contractor  to  build  a 
house.  After  it  is  finished  there  is  much  dif- 


26  TEIAL  TACTICS. 

ference  of  opinion;  the  owner  claims  that  he 
has  paid  the  contractor  more  than  was  owing 
to  him,  and  that  the  contractor  spoiled  part  of 
the  house;  that  various  things  caused  damage 
and  that  the  contractor  is  owing  money  to  the 
owner  of  the  lot.  The  contractor,  on  his  part 
claims  that  he  did  everything  well,  that  the 
owner  did  not  pay  all  that  was  owing  to  him. 
If  such  a  case  comes  into  a  lawyer's  office,  it 
would  be  his  duty  immediately  to  sue,  because 
the  man  who  brings  the  first  suit  controls  the 
case.  For  instance  the  lawyer  representing  the 
owner  sues  the  contractor,  who  commences  a 
cross  action,  a  set-off.  The  owner,  controlling 
the  litigation,  would  have  the  first  and  last 
speech  and  that  would  be  the  turning  point  in 
that  case.  Even  if  the  opponent  does  not  bring 
a  set-off  which  he  does  not  necessarily  have  to 
do  because  he  may  bring  an  original  suit  in  the 
same  Or  in  another  court,  the  first  case  is  the 
senior  case.  The  chances  are  then  that  the 
courts  will  consolidate  the  two  cases  and  if  they 
do  this  the  second  case  will  be  brought  into  the 
first  one  and  the  same  advantage  will  be  held. 
Or  if  the  two  cases  are  not  consolidated  the  first 
case  should  come  on  for  trial  before  the  second 
one  if  reasonable  diligence  is  used  in  pushing  it 
forward.  The  case  brought  first  and  tried  first 
having  the  advantage  of  the  first  and  last  speech 


SELECTION  OF  THE  COURT.        27 

will  probably  win,  and  the  matter  is  then  res  ad- 
judicata  when  the  second  case  comes  on.  If 
due  diligence  is  used  it  is  altogether  likely  that 
the  second  case  would  be  stopped  until  the  first 
case  is  heard.  There  is  always  some  advantage 
in  being  the  senior ;  there  may  be  a  considerable 
advantage  and  at  all  events  nothing  can  be  lost 
by  it. 

A  debtor  arrested  upon  a  writ  of  capias  ad 
satis  faciendum  may  in  some  jurisdictions  test 
the  validity  thereof  by  habeas  corpus;  in  this  he 
has  the  choice  of  judge  and  may  apply  before 
one  who  greatly,  perhaps  inordinately,  favors 
the  debtors  on  such  questions.  But  the  creditor 
has  anticipated  such  a  move  and  when  asking 
for  the  writ  of  capias  has  caused  the  debtor  to 
be  notified  thereof,  thus  giving  him  an  oppor- 
tunity to  be  heard  against  the  issuance  of  the 
writ;  herein  the  creditor  has  the  choice  of  the 
judge  and  an  order  directing  the  ca.  sa.  to  issue 
should  to  some  extent  be  deemed  controlling  by 
way  of  res  adjudicata  in  any  subsequent  habeas 
corpus  proceeding. 

There  are  many  instances  where  the  matter  of 
the  senior  suit  plays  an  important  part.  For 
instance  a  surgeon  has  performed  an  operation 
upon  a  patient  and  the  surgeon  has  not  been 
paid.  The  patient  claims  that  the  surgeon  did 
not  properly  perform  the  operation;  other  sur- 


28  TRIAL  TACTICS. 

geons  and  physicians  tell  the  patient  that  the 
operation  was  malpractice.  If  the  surgeon  sues 
for  his  bill  and  recovers  and  is  afterwards  sued 
for  malpractice ;  or  if  the  two  suits  are  running 
at  the  same  time  and  the  surgeon's  suit  is 
brought  first  and  he  wins,  it  has  been  held  in 
many  cases  that  that  is  an  adjudication;  it  has 
been  adjudicated  that  the  surgeon  did  perform 
his  work  properly  or  else  he  would  not  have  been 
entitled  to  his  pay.  It  has  been  held  that  if  he 
gets  his  judgment  for  pay,  even  by  default,  then 
that  is  res  adjudicata  that  he  performed  his 
work  properly.  So  cases  are  in  the  books  where 
a  patient  claiming  that  the  surgeon  was  guilty 
of  malpractice  actually  had  a  suit  pending  for 
$10,000  or  $15,000,  while  the  surgeon  has  gone 
before  a  justice  of  the  peace  with  his  little  bill 
of  $50  or  $60  or  $100.  The  surgeon  has  estab- 
lished his  claim  for  services  before  a  justice  of 
the  peace,  the  time  for  appeal  has  gone  by  and 
that  judgment  has  been  pleaded  in  bar  to  the 
patient's  claim  for  damages  and  the  plea  has 
been  sustained.  On  the  other  hand  if  the  pa- 
tient had  sued  first  and  the  surgeon  afterwards 
the  senior  case  would  have  the  advantage  over 
the  junior  case. 

Often  street  railroad  companies  when  one  of 
their  cars  has  collided  with  some  passing  car- 
riage or  wagon  immediately  sue  the  driver  of  the 


SELECTION  OF  THE  COURT.       29 

wagon  for  damages.  They  bring  a  small  suit 
before  a  Justice  of  the  Peace,  claiming  that  the 
driver  of  the  wagon  was  in  fault  in  running  into 
the  car  and  injuring  it ;  perhaps  he  scratched  the 
paint  a  little  or  broke  a  window.  At  all  events 
they  rush  immediately  with  a  small  suit  before 
a  Justice  of  the  Peace,  and  the  driver  of  the 
wagon  perhaps  thinking  little  about  it,  and  even 
his  lawyer  thinking  it  a  matter  of  no  importance 
may  let  the  judgment  go  by  default  and  the 
street  car  company  obtains  a  small  judgment. 
But  the  driver  of  the  wagon  who  may  have  suf- 
fered severely,  perhaps  with  broken  ribs  or  with 
the  loss  of  a  limb  in  that  same  collision,  when  he 
later  brings  a  suit  for  damages,  finds  that  his 
suit  is  barred  because  it  has  been  found  in  the 
judgment  of  the  Justice  suit  that  he  was 
in  fault  and  it  was  res  adjudlcata,  which  pre- 
vents his  recovering  against  the  railroad  com- 
pany. 

The  difference  between  a  bar  by  res  adjudi- 
cata  under  a  prior  suit  and  an  estoppel  in  evi- 
dence should  be  explained.  By  res  adjudicata 
is  meant  that  the  affair  has  been  adjudicated. 
If  the  affair  has  once  been  adjudicated  be- 
tween the  parties  it  then  is  obligatory  upon  each 
one  of  them  not  only  as  to  all  the  matters  in- 
volved in  that  case  but  in  regard  to  all  matters 
that  could  have  been  and  should  have  been  in- 


30  TRIAL  TACTICS. 

volved  in  that  case.  There  are  two  ways  of 
taking  advantage  of  res  adjudicata;  either  by 
bar  as  a  plea  or  by  estoppel  in  evidence  in  the 
course  of  the  trial.  By  bar  as  a  plea  is  meant 
that  if  a  matter  has  been  sued  and  that  same 
matter  is  sued  over  again,  the  decision  in  the 
prior  suit  is  a  bar.  Or  the  prior  suit  may  not 
be  a  bar,  but  in  the  course  of  the  second  trial 
may  be  used  by  way  of  estoppel.  An  illustra- 
tion will  explain.  Suppose  a  man  buys  a  horse 
warranted  to  him  to  be  sound  and  as  purchase 
price  he  gives  one  note  for  $100.  He  soon  finds 
that  the  transaction  was  a  fraud,  that  the  horse 
is  not  sound,  and  that  in  fact  it  was  a  stolen 
horse;  that  the  man  who  sold  it  to  him  had  no 
title.  Hence  the  note  was  without  consideration 
or  the  consideration  failed;  at  all  events  it  is  a 
complete  bar  to  the  note.  The  payee  of  the  note 
sues  on  the  note  and  the  maker  wins.  Later  the 
payee  of  the  note  sues  again  upon  the  same  note ; 
then  the  maker  of  the  note  should  plead  in  bar 
that  he  was  once  sued  upon  this  same  note,  that 
he  pleaded  and  that  it  went  to  trial  and  that 
judgment  was  given.  That  is  a  bar.  Suppose 
that  this  man  in  precisely  the  same  circum- 
stances gave  two  notes,  each  one  for  $50,  the  one 
note  due  in  one  month  and  the  other  note  due 
in  two  months.  When  the  first  note  comes  due 
the  payee  sues  upon  it  and  the  maker  wins  as 


SELECTION  OF  THE  COURT.        31 

before,  upon  the  ground  that  the  consideration 
for  the  note  had  failed.  Later  the  second  one 
conies  due,  the  payee  sues  on  it.  The  maker 
cannot  here  plead  in  bar.  He  can  not  say  that 
he  has  been  sued  on  that  note  and  that  there  has 
been  an  adjudication  in  his  favor  because  he 
has  not  in  fact  been  sued  on  that  note  at  any 
time;  but  when  he  comes  to  his  defense  on  that 
note  he  can  plead  an  estoppel,  and  it  is  probably 
safest  for  him  to  plead  specially,  that  that  note 
was  made  by  him  under  circumstances  stated 
and  in  connection  with  another  note,  namely  the 
note  due  in  one  month,  and  that  he  was  sued  on 
the  first  one  and  in  that  suit  he  set  up  this  de- 
fense and  that  this  defense  brought  a  judgment 
in  his  favor  and  that  it  was  necessarily  adjudged 
that  both  these  notes  were  without  consideration. 
Hence  the  payee  is  estopped  on  the  trial  of  the 
second  case  from  contending  that  the  second 
note  is  still  a  valid  note,  because  the  entire  con- 
troversy was  heard  on  the  first  one  and  applies 
to  both  notes  and  both  litigations.  So  if  the 
same  plaintiff  sues  the  same  defendant  and  the 
defendant  wins  and  there  is  a  second  suit  the 
defendant  pleads  in  bar.  In  the  case  instanced 
above,  however,  in  which  the  railway  company 
won  and  later  the  owner  of  the  wagon  sued  the 
railway  company,  this  reversed  the  parties.  In 
the  first  suit  the  company  was  plaintiff;  in  the 


32  TRIAL  TACTICS. 

second  suit  the  company  was  defendant.  There 
the  plea  would  not  be  in  bar,  but  it  would  be  a 
special  plea  by  way  of  estoppel. 

Another  consideration  in  determining  the  best 
place  in  which  to  bring  a  litigation  is  the  con- 
flicting decisions  which  at  times  prevail  between 
the  Federal  Courts  and  the  State  Courts.  The 
rules  in  the  Federal  Courts  at  times  are  quite 
different  from  those  in  the  State  Courts.  A 
very  apt  illustration  can  be  found  in  the  36th 
Supreme  Court  of  Illinois,  Manning  v.  McClure, 
which  deals  with  the  law  of  negotiable  paper 
and  which  differs  materially  from  the  case  of 
Swift  v.  Tyson,  U.  S.  Supreme  Court,  16 
Peters  1. 

There  is  a  difference  in  the  choice  of  the 
forum  in  that  kind  of  a  question  and  whether  to 
bring  litigation  in  the  State  Court  or  in  the 
United  States  Court  would  depend  upon  the  na- 
ture of  the  case.  The  Federal  Courts  are  not 
bound  by  the  decisions  of  the  State  Courts  on 
matters  of  general  law,  on  matters  of  common 
law,  on  matters  of  the  law  merchant  or  mercan- 
tile law — in  fact  are  not  bound  by  the  decisions 
of  the  State  Courts  on  any  matters  unless  they  be 
matters  dealing  peculiarly  with  the  internal  or 
domestic  matters  of  the  State  itself,  for  instance, 
matters  based  on  the  constitution  and  statutes  of 
the  State  and  concerns  peculiar  to  the  State 


SELECTION  OF  THE  COURT.       33 

itself.  There  the  Federal  Courts  would  follow, 
so  to  speak,  the  decisions  of  the  State  Court; 
but  if  a  question  be  solvable  by  the  application 
of  general  law,  common  law,  the  law  merchant, 
the  law  relative  to  bills  and  notes  and  drafts,  the 
Federal  Courts  follow  their  own  theories,  and 
are  not  bound  by  the  State  Courts.  This  may 
make  a  great  deal  of  difference,  which  must  be 
considered  if  there  is  a  choice. 

In  the  matter  of  damage  cases,  personal  in- 
jury cases,  there  is  a  marked  difference  between 
the  Federal  Court  and  the  State  Court  with 
reference  to  such  a  simple  thing  as  chips  flying 
off  a  hammer  or  chisel  and  injuring  the  laborer's 
eyes.  There  are  quite  a  number  of  these  cases 
and  the  Federal  Courts  at  times  hold  them  more 
favorably  to  the  injured  man  than  do  some  of  the 
State  Courts;  though  in  a  case  against  a  large 
corporation  which  owns  a  large  plant  the  im- 
pulse might  probably  be  to  go  into  the  State 
Court. 

Also  on  the  subject  of  releases  signed  by  peo- 
ple who  have  been  injured,  a  number  of  deci- 
sions can  be  found  in  the  Federal  Courts  some- 
what different  from  those  in  the  State  Courts. 
It  may  be  found  advantageous  to  examine  the 
two  systems.  Usually  the  first  impulse  of  law- 
yers defending  large  corporations  is  to  go  from 
the  State  Court  into  the  Federal  Court.  Some- 


34  TKIAL  TACTICS. 

times  it  is  advisable  to  do  so,  other  times  it  is 
not  advisable,  and  it  is  the  duty  of  the  lawyer, 
before  he  removes  the  case  from  the  State  Court 
to  the  Federal  Court  to  consider  carefully 
whether  the  principles  that  prevail  in  the  Fed- 
eral Court  are  more  favorable  to  him  than  the 
principles  that  prevail  in  the  State  Court.  If 
the  party  cannot  well  be  sued  in  his  resident 
state  because  the  principles  applicable  to  the  liti- 
gation are  not  so  favorable  there  and  he  cannot 
be  caught  in  a  neighboring  state  because  he  does 
not  leave  home,  he  may,  however,  have  property 
in  some  other  state  which  can  be  attached  and 
thus  subject  him  to  litigation  there. 

The  law  relative  to  joining  the  employer  and 
his  negligent  servant  as  co-defendants  varies  in 
different  jurisdictions,  some  holding  that  they 
can  be  joined  and  others  that  inasmuch  as  the 
cause  of  complaint  is  essentially  different,  one 
being  tried  for  his  negligence  and  the  other  on 
the  doctrine  of  respondeat  superior,  they  cannot 
be  joined. 

The  Federal  Courts  are  also  more  liberal  than 
the  Illinois  State  Courts  in  allowing  bills  in 
chancery  to  cancel  insurance  policies,  notes,  etc., 
obtained  by  fraud.  The  State  Courts  refuse 
equitable  relief  on  the  ground  that  the  remedy  at 
law  is  adequate,  but  ordinarily  the  remedy  is 
not  adequate,  for  the  policy  holder  or  the  holder 


SELECTION  OF  THE  COURT.       35 

of  the  note  may  not  bring  his  action  for  a  num- 
ber of  years  and  in  the  meantime  all  the  evi- 
dence may  be  lost.  The  State  Courts  however 
will  enjoin  the  holder  of  a  note  not  past  due 
from  transferring  it,  and  this  may  prevent  him 
from  selling  to  a  purchaser  without  notice. 

On  the  question  of  res  ipsa  loquitur,  on  the 
measure  of  care  which  the  licensor  owes  to  a 
licensee,  and  in  some  matters  of  assumed  risk 
quite  a  number  of  cases  may  be  noted  in  which 
the  Federal  Courts  hold  more  strongly  for  the 
plaintiff  than  do  some  of  the  State  Courts. 

Suppose  a  man  has  made  himself  obnoxious  to 
his  neighbors  and  a  large  band  of  them  come  and 
abuse  him.  Of  course  he  wishes  to  sue  for  dam- 
ages. Naturally  if  he  should  sue  in  his  own 
county  he  would  get  no  redress  because  the  en- 
tire county  is  inhabited  with  the  friends  and 
relatives  of  the  very  men  who  committed  the 
offense  and  sentiment  is  strong  against  him.  It 
is  useless  for  him  to  sue  those  people  in  his  home 
County ;  but  supposing  he  moved  to  a  neighbor- 
ing State  and  being  a  citizen  of  that  State  sued 
them  in  the  United  States  Court  in  the  Division 
which  sits  elsewhere.  He  comes  before  the 
United  States  Court,  before  a  judge  who  is  not 
elected  by  the  voters  of  the  County  but  who  is 
appointed  by  the  President  of  the  United  States, 
and  the  case  is  tried  before  jurors,  none  of 


36  TRIAL  TACTICS. 

whom  lives  in  the  County  or  if  one  should  hap- 
pen to  live  there  he  may  be  challenged  off.  In 
this  way  he  has  a  fair  chance  and  is  very  apt  to 
get  a  judgment. 

This  matter  of  establishing  a  change  of  resi- 
dence depends  upon  several  conditions,  the  most 
important  of  which  is  that  the  new  residence 
must  be  assumed  permanently.  If  a  man  actu- 
ally assumes  the  new  residence  it  does  not  make 
any  difference  whether  he  has  been  there  ten 
minutes  or  a  hundred  years,  he  becomes  a  resi- 
dent. Of  course  it  is  a  little  harder  to  prove 
residence  if  it  is  recent  than  if  it  has  been  for 
many  years.  The  question  of  domicile  or  resi- 
dence or  citizenship  is  dependent  not  simply 
upon  a  lapse  of  time,  though  that  is  a  circum- 
stance to  be  considered,  but  also  upon  other  ele- 
ments. If  a  citizen  of  Ohio  belonging  to  the 
U.  S.  Service  is  sent  down  to  Arizona  to  do  sur- 
veying he  may  be  down  there  many  years  and 
still  remain  a  citizen  of  Ohio. 

A  good  illustration  of  a  reason  for  choosing 
between  the  State  and  Federal  Courts  occurred 
during  the  Civil  War  and  again  in  1898  when 
the  Federal  statutes  required  that  people  buy 
stamps  and  affix  them  to  notes,  mortgages  and 
such  paper  as  a  means  of  producing  revenue  to 
the  government.  These  stamps  were  sold  to  the 
people  and  to  force  the  people  to  make  use  of 


SELECTION  OF  THE  COURT.        37 

them  it  was  provided  that  an  instrument  with- 
out being  stamped  could  not  be  given  in  evidence 
on  any  trial.  That  is,  it  could  not  be  given  as 
evidence  in  a  suit  in  the  Federal  Court,  but  if 
the  suit  were  in  a  State  Court  it  could  be  offered 
without  having  the  stamp  upon  it.  The  United 
States  is  one  government  but  the  State  govern- 
ments are  entirely  distinct  and  separate  govern- 
ments and  it  is  a  principle  that  no  government 
can  control  the  actions  of  another  one.  If  the 
United  States  attempted  to  do  that  to  a  State 
Court  it  would  not  be  legal  and  the  State  could 
not  be  bound  by  any  such  statute  of  the  United 
States  and  has  been  held  not  to  be  bound.  So 
a  matter  like  that  would  be  of  the  greatest  im- 
portance in  determining  which  court  to  go  into, 
because  in  one  court  a  cause  of  action  could  be 
established  and  in  the  other  it  could  not. 

Sometimes  even  when  there  is  no  controversy 
there  is  a  preference  in  the  choice  of  courts. 

In  the  matter  of  adoption,  for  instance,  there 
may  be  several  courts  in  which  to  go  under  the 
statutes.  The  County  Court  however  would  not 
be  as  advisable  as  the  Circuit  Court  in  such  a 
case  for  this  reason :  the  Circuit  Court  is  a  court 
of  general  jurisdiction  whereas  the  County 
Court  is  to  some  extent  a  court  of  special  or 
limited  or  inferior  jurisdiction.  This  decree  of 
adoption  might  carry  with  it  very  serious  conse- 


427887 


38  TRIAL  TACTICS. 

quences.  It  may  be  assumed  that  the  people 
who  adopt  the  child  cherish  it  as  their  own  and 
that  when  these  people  die  the  child  will  inherit. 
Now  a  decree  sent  abroad  if  it  be  a  decree  of  a 
court  of  general  jurisdiction  has  more  force  and 
is  more  easily  proven  and  is  less  subject  to  tech- 
nical objection  and  comment  and  criticism  than 
would  be  a  decree  of  a  court  of  limited  jurisdic- 
tion. So  even  where  there  is  no  controversy 
there  is  still  the  choice  to  contemplate  and  decide 
upon  before  commencing  proceedings. 

Illustrations  may  be  observed  every  day  of 
the  importance  of  this  choosing  of  courts.  A 
recent  one  in  Chicago  occurred  in  a  Council 
meeting  in  which  the  Mayor  had  made  some 
statement  about  the  Traction  question  and  the 
City's  lawyer  about  midnight  rushed  out  of  the 
Council  Chambers  to  a  judge  who  was  waiting 
and  filed  his  bill  in  Chancery  there  in  order  to 
get  the  advantage  of  being  the  first  complainant 
in  the  State  Court,  lest  the  Traction  Company 
would  become  the  first  complainant  in  the  Fed- 
eral Court  the  next  morning. 

Sometimes  it  is  advisable  to  sue  before  a  Jus- 
tice of  the  Peace.  Sometimes  it  is  advisable 
when  taking  papers  on  behalf  of  a  client  to  take 
a  series  of  small  notes,  none  of  them  over  $200, 
rather  than  large  notes, 'in  order  that  if  quick 
action  be  needed  a  speedy  trial  can  be  had  be- 


SELECTION  OF  THE  COURT.        39 

fore  a  Justice  of  the  Peace.  There  are  many 
advantages  in  a  hearing  before  a  Justice  of  the 
Peace,  especially  in  a  large  jurisdiction,  one  of 
which  is  that  a  lawyer  who  likes  exercise  in  the 
country  air  may  sue  forty  miles  from  the  city 
and  go  out  there  to  enjoy  it,  no  matter  how  his 
opponent  regards  the  matter. 

In  a  court  of  record  the  terms  must  be 
watched.  An  instance  in  illustration  of  the  im- 
portance of  this  occurred  before  the  Bank- 
ruptcy Law  went  into  effect,  which  might  apply 
if  the  Bankruptcy  Law  should  be  repealed.  A 
lawyer  secured  a  client's  claim  and  if  he  at- 
tached prior  to  the  first  day  of  the  term  he  would 
find  other  creditors  attaching  also  in  the  same 
term  of  court  which  would  let  them  have  a  right 
to  pro-rate.  He,  however  chose  the  term  of 
court  and  a  court  in  which  there  were  only  a  few 
days,  perhaps  a  few  hours  left,  so  that  by  the 
time  the  other  creditors  discovered  that  he  had 
attached  they  were  too  late  to  attach  in  that 
term  of  court  and  he  had  the  benefit  of  collecting 
his  client's  claim  in  full,  whereas  the  other 
creditors  came  in  at  a  later  term  of  court  and 
were  not  allowed  to  pro-rate  or  share. 


CHAPTER  II. 

PREPARING  FOR  TRIAL. 

THE  preparation  of  a  case  before  going  into 
court  is  a  very  important  matter.  The 
lawyer  must  acquaint  himself  thoroughly 
with  the  subject  matter  of  the  litigation.  In  a 
case  of  homicide,  for  instance,  if  it  is  at  all  prac- 
ticable, at  all  possible,  the  scene  of  the  killing 
should  be  examined ;  the  location  of  the  partici- 
pants should  be  gotten  as  closely  as  possible  by 
illustration,  by  explanation  or  by  measurement. 
Attorneys  often  find  it  advisable  to  go  ten  or 
twenty  miles  into  the  country  to  look  all  over  a 
farm-yard,  a  barn,  and  house  and  wood-shed, 
and  'everything  involved  in  the  scene  of  the 
homicide,  getting  the  location  clearly  in  their 
minds  more  plainly  than  any  drawing  or  any 
witness  could  make  it.  Witnesses  often  make 
mistakes  or  if  they  do  not  make  mistakes  they 
may  not  have  the  ability  to  portray  the  matter 
by  words  and  drawings  as  it  actually  existed. 
The  entire  surroundings  should  be  carefully  ex- 
amined even  if  it  be  months  and  years  after  the 
homicide.  The  house  is  there,  the  trees  are 

40 


PREPARING  FOR  TRIAL.  41 

there,  the  barn  is  there ;  the  general  location  of 
things  can  be  grasped.  It  will  help  greatly  in 
trying  the  case,  help  greatly  in  cross-examining 
the  opposing  witnesses,  not  only  to  know  what 
to  ask  of  them,  but  what  is  of  still  more  impor- 
tance, to  know  what  riot  to  ask  them.  Facts 
after  all  are  stubborn  things  and  when  undenia- 
ble actualities  are  opposed  the  less  said  about 
them  the  better,  because  the  more  they  are  re- 
ferred to  the  more  difficult  it  will  be  later  to 
evade  them.  One  thoroughly  acquainted  with 
the  surroundings  knows  almost  intuitively  what 
to  ask  and  what  to  refrain  from  asking. 

Particularly  interesting,  both  to  the  plaintiff 
and  to  the  defendant,  are  injury  cases  in 
which  persons  are  hurt  in  the  complicated  ma- 
chinery of  large  factories.  No  amount  of  ex- 
planation from  any  one  can  give  so  much  infor- 
mation about  a  machine  as  can  be  learned  from 
close  examination  of  the  thing  itself.  A  lawyer 
recently  won  a  defense  because,  almost  at  the 
risk  of  his  life,  he  had  climbed  to  the  top  of  a 
very  dangerous  piece  of  machinery  in  order  to 
look  at  it  while  it  was  in  motion  from  precisely 
the  standpoint  that  was  occupied  by  the  man 
who  was  injured.  He  was  enabled  thus  to  tell 
exactly  what  had  happened  and  why  it  hap- 
pened and  in  the  examination  of  his  own  wit- 
nesses to  know  exactly  what  to  draw  out  in  order 


42  TRIAL  TACTICS. 

to  present  the  matter  to  the  jury  as  it  actually 
had  occurred. 

The  closest  observation  is  at  all  times  neces- 
sary. Every  incident,  every  detail,  no  matter 
how  insignificant,  should  attract  the  attorney's 
attention,  even  though  it  is  apparently  un- 
marked and  its  value  must  at  times  be  quickly 
determined.  In  the  trial  of  a  recent  case  the 
question  at  issue  was  whether  a  testator  was  of 
competent  mind  to  make  a  will,  and  the  trial 
therefore  was  on  the  condition  of  his  mental 
power  at  the  time  the  will  was  made.  The  con- 
testants who  were  opposing  the  will  had  been  at 
a  loss  to  obtain  evidence  of  the  old  man 's  mental 
condition.  The  will  was  made  in  favor  of  his 
housekeeper  who  had  cared  for  him  for  the  last 
eight  years  of  his  life  during  which  the  old  man 
had  been  stone  blind.  Nobody  ever  came  to  talk 
to  him  except  in  her  presence  and  the  communi- 
cations were  very  brief  indeed,  unless,  accident- 
ally, it  might  happen  that  he  got  out  of  the  house 
for  a  few  minutes  unobserved  and  one  or  other 
of  the  town  people  going  by  exchanged  a  few 
words  with  him.  A  jury  was  called  and  each 
one  of  the  jury  was  asked  if  he  had  any  opinion 
as  to  the  case  or  any  opinion  as  to  the  mental 
condition  of  the  testator  and  finally  one  man 
said  that  he  had  a  very  decided  one  and  the 
Court  excused  him. 


PREPARING  FOR  TRIAL.  43 

Now  it  was  plain  that  this  man  possessed  in- 
formation which  would  make  him  a  good  wit- 
ness for  one  side  or  the  other  but  if  the  contest- 
ant's  lawyer  had  gone  to  him  immediately  and 
this  man  had  said:  "Yes,  my  opinion  is,  that 
the  man  was  sane,"  the  other  jurors  standing 
around  would  have  been  influenced  by  that.  So 
the  lawyer  apparently  disregarded  his  statement 
and  waited  until  the  jurors  dispersed  for  the 
noon  hour  and  until  this  particular  man  could 
be  found  alone.  Then  the  lawyer  who  had  been 
following  him  said,  "Excuse  me,  you  said  you 
had  an  opinion  about  this  case ;  may  I  ask  what 
your  opinion  is?"  "Why,"  the  man  said,  "He 
was  as  crazy  as  a  loon!"  At  two  o'clock  that 
man  was  back  in  court  as  a  witness  and  won  the 
case  for  the  contestants. 

There  is  nothing  wrong  about  taking  advan- 
tage of  points  like  these,  nothing  dishonorable, 
nothing  improper.  It  is  simply  applying  the 
available  material  to  the  best  advantage.  There 
was  a  criminal  case  some  years  ago  in  which  one 
of  the  very  important  points  was  whether  a  cer- 
tain implement,  a  case-knife  or  jack-knife  which 
was  there  as  an  exhibit,  had  upon  it  stains  of 
human  blood  or  other  kind  of  blood.  One  of  the 
lawyers  made  the  grave  mistake  of  taking  a  wit- 
ness in  the  court  room,  talking  to  him  and  dis- 
playing the  knife  in  the  presence  of  the  jury. 


44  TRIAL  TACTICS. 

The  witness  who  was  an  expert  took  a  look  at  it 
and  did  not  come  back,  which  was  equivalent  to 
telling  the  jury  that  that  witness's  testimony  was 
unfavorable  or  the  lawyer  would  have  had  him 
back.  The  place  to  examine  the  witness  is  away 
from  the  jury  box  altogether;  then  if  the  wit- 
ness is  doubtful  there  is  no  law  of  morals  or  any 
other  law  to  compel  him  to  be  called ;  he  can  sim- 
ply be  ignored.  If  he  is  a  favorable  witness,  on 
the  other  hand,  he  can  be  produced  at  the  proper 
time  and  place.  These  are  points  in  the  prep- 
aration of  a  case  that  require  constant  attention. 
So  also  not  only  all  the  facts  connected  with  a 
case  but  all  the  law  connected  with  it  as  well  must 
be  learned.  The  theory  of  the  law  must  be  mas- 
tered ;  what  elements  are  needed  to  prove  the  case 
or  what  elements  are  needed  to  establish  the  de- 
fense as  the  case  may  be.  Not  that  facts  shall 
be  manufactured  which  are  not  there,  but  that 
according  to  the  law  of  the  case  the  best  use  may 
be  made  of  the  facts  which  are  there.  A  simple 
illustration  is  a  case  which  in  its  nature  requires 
a  demand  upon  the  other  party  for  payment  or 
a  demand  for  certain  papers.  If  a  demand  is  an 
ingredient  of  the  case  then  it  is  necessary  to  see 
before  the  litigation  commences  that  the  same 
is  made;  or  having  commenced  the  case  to  see 
that  the  proof  of  the  demand  is  offered  so  that  all 
the  details  requisite  by  law  may  be  properly  es- 


PREPARING  FOR  TRIAL.  45 

tablished  if  they  exist.  If  they  do  not  exist,  if 
there  is  no  case,  it  may  as  well  be  found  out  at 
once.  So  also  it  is  well,  by  way  of  preparation, 
to  learn  as  much  as  possible  about  the  opponent's 
case  or  the  opponent's  defense  so  that  prepara- 
tion may  be  made  in  turn  against  it.  The  de- 
fendant may  claim  upon  the  trial  for  instance 
that  the  cause  of  action  against  him  has  been 
released.  This  may  be  learned  from  talk  be- 
tween the  litigants  which  precedes  the  trial  and 
in  that  case  provision  must  be  made  against 
it.  It  must  be  ascertained  why  he  claims  a  re- 
lease, what  the  circumstances  are  under  which 
he  is  likely  to  advance  proof,  and  rebuttal  must 
be  ready  against  it  at  the  proper  time.  It  may 
be  urged  that  these  things  can  be  learned  in  the 
course  of  trial  and  that  if  surprised  by  them  a 
lawyer  may  obtain  a  continuance.  That  may  be 
true  but  to  get  a  continuance  means  perhaps 
three  more  years  of  delay  which  discourages  the 
client  and  justly  subjects  his  lawyer  to  his  criti- 
cism. All  that  care  and  thought  can  do  to  over- 
come these  contingencies  in  advance  it  is  a  law- 
yer's duty  to  do. 

Chess  is  one  of  the  greatest  games  of  science 
and  skill  and  there  is  one  leading  rule  in  chess. 
Before  any  move  is  made  on  the  board  it  must  be 
expected  that  the  opponent  will  make  a  counter- 
move  which  will  be  the  strongest  possible  move 


46  TRIAL  TACTICS. 

that  can  be  made.  So  also  it  is  with  a  litigation. 
It  must  always  be  expected  that  the  opponent 
will  do  the  strongest  possible  thing  that  he  can 
do  on  his  side.  If  then  he  does  less  so  much  the 
better ;  if  he  does  make  the  strongest  move  it  has 
been  expected  and  prepared  against. 

Sometimes  it  is  not  possible  to  know  in  advance 
much  about  the  case  because  the  declaration  may 
be  too  general.  In  that  event  a  bill  of  partic- 
ulars must  be  brought  in  order  to  get  such  speci- 
fications as  will  enable  better  preparations  to  be 
made.  Much  thought  must  be  given  to  the  dec- 
laration. 

If  the  declaration  is  bad,  it  often  will  be  a 
great  blunder  for  the  defendant's  counsel  to  de- 
mur to  the  declaration  because  by  so  doing  he 
merely  assists  the  plaintiff's  attorney  to  a  better 
declaration  and  a  better  statement  of  the  issue 
which  he  is  presenting  on  the  trial.  If  the  dec- 
laration is  bad  the  defense  should  be  very  glad 
of  it;  because  first  if  he  loses  the  case  he  will 
still  have  a  chance  to  move  in  arrest  of  judg- 
ment, whereas,  if  he  demurs  he  waives  the  right 
of  ultimately  moving  in  arrest  of  judgment. 
And,  second,  if  the  declaration  is  bad  and  he 
does  not  demur  and  ultimately  loses  he  may  get 
the  case  reversed  because  of  the  bad  declaration. 
So  he  has  done  his  technical  duty  to  his  client 
on  behalf  of  the  defense  by  giving  him  a  new 


PREPARING  FOR  TRIAL.  47 

trial  and  delaying  litigation  and  warding  off  his 
opponent  as  long  as  possible;  whereas  if  he  de- 
murs to  a  bad  declaration  and  especially  if  he 
argues  the  demurrer,  as  many  do,  he  is  simply 
educating  the  plaintiff's  attorney.  He  is  show- 
ing him  first  how  to  draw  a  good  declaration,  one 
which  will  stand  when  won,  and  second  he  is 
educating  him  how  to  formulate  and  present 
properly  the  evidence  in  support  of  his  case.  In 
other  words  he  is  doing  his  opponent  the  great- 
est kindness  while  he  is  supposed  to  be  drawing 
pay  from  his  own  client.  It  is  a  subject  for  con- 
tinual amazement  to  see  lawyers  eminent  in  the 
practice  taking  such  steps.  There  are,  however, 
instances  where  the  opponent  may  be  by  demurrer 
driven  to  untenable  positions  and  thus  to  defeat. 
A  declaration  should  be  demurred  to  however 
when  the  demurrer  and  amendment  do  not  aid 
the  plaintiff  or  his  attorney  in  the  least,  but  are 
needed  for  the  defendant  and  his  client  to  pre- 
pare themselves  for  their  side  of  the  engage- 
ment. An  illustration  is  a  declaration  against 
the  City  of  Chicago  which  says  that  the  plaintiff 
was  injured  by  a  defective  sidewalk  "in  the  City 
of  Chicago."  In  this  instance  the  City  Attor- 
ney must  demur  and  demur  specially,  because 
the  declaration  fails  to  show  where  in  the  City 
it  happened;  and  clearly  the  City  Attorney  in 
such  a  case  cannot  prepare  for  the  defense.  He 


48  TKIAL  TACTICS. 

is  told  the  plaintiff  was  injured  in  the  City  of 
Chicago  on  a  sidewalk.  The  City  of  Chicago  is 
thirty  miles  long  and  ten  miles  wide  and  has 
thousands  of  miles  of  sidewalk ;  and  if  the  City 
Attorney  is  conducting  a  case  like  that  he  may 
think  the  plaintiff  was  injured  on  State  street, 
whereas,  when  it  comes  to  trial  the  plaintiff  may 
insist  he  was  injured  on  Halsted  street,  and  the 
City  Attorney  be  left  without  any  evidence  to 
meet  that  accusation.  He  may  have  thought  the 
injury  happened  on  State  street  and  may  have 
had  witnesses  as  to  that  location  and  no  wit- 
nesses as  to  Halsted  street.  Hence,  very  clearly 
it  is  the  duty  of  the  attorney  for  the  defense  to 
demur  and  demur  specially,  that  the  declaration 
is  vague  and  indefinite  and  fails  to  apprise  the 
defendant  with  reasonable  certainty  of  the  time 
and  location  of  the  injury.  Upon  which  the  de- 
murrer will  be  sustained  and  the  plaintiff  will 
then  amend  and  state  that  he  was  injured  on  the 
east  side  of  State  street,  between  Madison  and 
Washington  streets,  which  probably  would  suf- 
fice. The  court  would  probably  not  compel  him 
to  say  exactly  where  but  within  reasonable 
bounds  so  that  the  defendant  could  make  prep- 
arations for  the  trial.  That  kind  of  a  de- 
murrer is  right. 

Of  course  a  demurrer  cannot  insist  that  the 
plaintiff  shall  plead  his  evidence.     The  demurrer 


PEEPAEING  FOR  TRIAL.  49 

can  neither  ask  nor  will  the  court  grant  that  the 
plaintiff  must  give  evidentiary  facts.  All  he 
must  do  is  to  give  the  ultimate  facts.  But  the 
ultimate  facts  must  still  be  given  with  some  rea- 
sonable definiteness,  so  as  to  give  the  defendant 
an  opportunity  to  meet  them.  The  question  here 
enters  whether  to  say  that  the  man  was  injured 
on  the  east  side  of  State  street,  between  Madi- 
son and  Washington,  in  front  of  a  certain  num- 
ber, and  that  the  plank  of  the  sidewalk  was 
broken  and  the  nails  in  the  plank  were  rusty  and 
the  stringer  was  rotten,  or  whether  it  is  suffi- 
cient to  say  that  the  sidewalk  there  had  become 
unsafe  to  walk  upon  and  insecure,  without  say- 
ing why  it  was  unsafe  and  insecure.  But  this  is 
a  subject  that  is  covered  thoroughly  in  books  on 
pleadings  and  need  not  be  gone  into  here. 

It  is  advisable  to  demur  at  other  times  on 
similar  principles.  A  large  steel  company  for 
instance  is  being  defended  in  a  personal  injury 
case.  If  the  plaintiff  should  say  he  was  injured 
in  its  plant  it  would  probably  be  the  duty  of  the 
defendant  there  to  demur  specially  and  to  find 
out  in  general  terms  of  the  declaration  in  what 
particular  part  of  the  building,  or  at  which  ma- 
chine it  was  that  the  injury  occurred,  because 
otherwise  the  defendant  would  not  have  a  fair 
chance  to  inquire  into  the  accident  and  prepare 
for  the  defense. 


50  TRIAL  TACTICS. 

Again  a  demurrer  may  be  necessary  to  obtain 
information,  to  find  out  what  has  to  be  met;  or 
it  may  be  necessary  because  the  declaration  con- 
tains things  prejudicial  but  not  proper  to  the 
case  itself.  In  that  case  a  lawyer  must  either 
demur  or  where  a  demurrer  is  not  applicable  he 
must  get  these  things  out  by  motion.  For  in- 
stance, a  plaintiff  states  a  cause  of  action  in  his 
declaration  and  inserts  various  other  matters 
which  are  not  proper  as  constituting  or  helping 
to  constitute  any  cause  of  action.  But  they  are 
alleged;  they  are  in  the  declaration.  Now,  if 
the  defendant  demurs  he  will  be  overruled  be- 
cause the  declaration  is  sufficient,  and  hence  the 
demurrer  cannot  be  sustained.  If  he  then 
pleads  and  goes  to  trial  there  will  be  put  in  all 
the  evidence  on  the  real  cause  of  action  and  also 
evidence  under  the  declaration  which  does  not 
belong  to  the  cause  of  action,  tending  to  injure 
his  client  in  the  estimation  of  the  jury  because 
jurors  are  not  very  discriminating.  Under 
these  circumstances  the  remedy  would  be,  before 
pleading  to  the  declaration,  to  obtain  by  motion 
an  order  to  get  out  of  the  declaration  the  matter 
which  is  in  there;  impertinent,  irrelevant,  sur- 
plusage and  scandalous,  as  it  is  termed  in  law. 
That  is  the  proper  way  to  pare  down  the  declara- 
tion and  to  get  it  as  it  should  be  without  im- 
proper and  unfair  prejudicial  matter. 


CHAPTER  III. 

COURT  ROOM  CONDUCT. 

A  SUBJECT  on  which  a  few  remarks  may 
be  appropriate  is  that  of  the  court  room 
conduct  of  the  attorneys  in  a  litigation. 
A  great  many  people  appear  still  to  have  false 
ideas  on  this  subject  and  to  think  that  a  lawyer 
should  assume  some  sort  of  artificial  demeanor 
while  in  litigation,  whereas  the  strongest  posi- 
tion for  him  to  take  is  undoubtedly  that  which  is 
most  natural  to  him.  It  is  just  as  inappropriate 
for  a  small  man  to  go  into  a  court  room  and  as- 
sume a  pompousness  and  dignity,  a  deep  tone  of 
voice  which  is  unnatural  to  him,  as  it  is  for  a 
large,  dignified  man  to  go  before  the  Court  and 
belittle  himself  by  some  buffoonery.  The  best 
conduct  in  general  is  the  natural  conduct,  the 
unaffected  every-day  manner  of  the  individual 
which  becomes  him  best. 

Of  course  there  is  much  to  be  said  in  favor  of 
training  and  culture.  Some  men  have  naturally 
a  defective  voice  and  much  is  to  be  accomplished 
by  developing  the  voice  and  strengthening  the 
tone  to  give  it  better  carrying  power.  The  value 

51 


52  TRIAL  TACTICS. 

of  a  powerful,  pleasing  voice  can  scarcely  be 
overestimated  but  the  pitch  of  the  voice  from  be- 
ginning to  end  should  be  the  customary  speaking 
tone.  Many  speakers  still  make  the  great  mis- 
take of  commencing  their  argument  with  vocifer- 
ation, with  thunderous  tones  of  voice  which  be- 
come tiresome  to  their  listeners  and  the  effect  is 
much  like  writing  a  letter  and  italicizing  every 
sentence.  With  all  italics  there  is  no  emphasis. 
The  emphasis,  the  stress  of  voice,  must  be  re- 
served for  those  places  where  the  more  profound 
impression  is  to  be  made.  If  everything  is  em- 
phasized the  important  parts  are  lost  among  the 
unimportant.  The  quiet,  self-possessed  conduct 
of  the  attorney  is  by  all  odds  the  most  effective 
manner  for  conducting  a  jury  trial,  especially  if 
it  be  a  long  trial.  It  may  be  that  if  the  matter 
is  run  through  in  half  a  day  or  even  a  day, 
vehemence,  and  an  impassioned  utterance  may 
be  effective.  But  in  a  long  trial  the  voice  must 
be  reserved  and  the  emphasis  must  be  reserved. 
If  there  are  some  very  cogent  pieces  of  evidence 
they  should  not  be  exploited  and  exhibited  at 
the  very  beginning  because  they  will  fall  flat 
afterwards.  The  effect  of  the  case  should  be 
allowed  to  grow  upon  the  jury  so  that  it  falls 
constantly  with  a  greater  and  greater  impression 
upon  their  minds.  Then  at  the  end  when  force 
and  emphasis  are  needed,  the  reserve  power  to 


COURT  ROOM  CONDUCT.  53 

make  the  desired  effect  upon  their  minds  will  be 
available. 

Much  might  be  said  about  manoeuvring  in 
the  conduct  of  the  trial.  There  is  a  trick  fre- 
quently employed  that  should  be  guarded  against. 
In  very  serious  cases  of  injury  and  suffering  in 
which  the  plaintiff  perhaps  has  become  badly 
crippled,  serious  criminal  cases  and  even  in  cases 
of  death  the  lawyer  defending  sometimes  seeks 
at  every  point  to  break  the  solemnity  of  the  case, 
to  throw  an  air  of  levity  around  it  so  that  the 
jurors  may  not  be  oppressed  with  the  entire 
weight  and  responsibility  of  so  serious  a  matter. 
The  defending  attorney  will  introduce  little  side- 
remarks  and  stir  up  little  bits  of  hilarity.  The 
other  side  will  frequently  be  caught  by  that  trick 
and  will  unwisely  be  tempted  to  retort,  which  is 
just  what  is  desired.  By  far  the  most  effective 
safeguard  against  such  attempts  is  a  dignified, 
reserved  demeanor  which  ignores  such  petty 
trickery  and  allows  it  to  waste  itself  upon  the 
armor  of  indifference. 

Also  there  are  attorneys  who  are  much  given 
to  a  constant  play  of  the  emotions,  seeking  at  all 
times  to  rouse  feelings  of  sympathy,  of  pathos, 
or  perhaps  of  hilarity.  That  is  usually  poor 
policy  because  they  are  scattering  their  shot. 
They  commence  a  long  trial  and  in  the  very  early 
stages  explode  some  pyrotechnics  of  oratory 


54  TRIAL  TACTICS. 

which  should  have  been  saved  for  the  close  when 
they  are  summing  up.  When  the  time  comes  in 
which  such  ammunition  is  most  needed  they  will 
find  that  they  have  by  those  scattering  small 
fusillades  that  have  been  going  on  for  hours  or 
days  or  weeks  wasted  the  impressions  that  they 
might  otherwise  have  made.  It  is  much  better 
to  keep  such  things  in  reserve  until  the  time 
when  they  are  of  the  utmost  importance — away 
at  the  end,  in  a  consolidated,  forcible,  crystal- 
lized shape.  One  cannon-ball  can  demolish  a 
wall,  whereas  a  lot  of  scattered  pigeon-shot  has 
no  effect  except  to  make  a  little  irritation. 

In  small  communities  where  jurors  are  sup- 
posed to  be  known  it  is  perfectly  proper  to  ad- 
dress each  one  of  them  by  name  and  they  prob- 
ably would  expect  to  be  thus  addressed.  Every 
man  considers  himself  of  some  importance  in 
this  world  and  every  man  likes  to  think  that  he 
is  recognized  by  other  men  and  that  his  name  is 
well  and  correctly  known.  The  fundamental 
principle  by  which  politicians  get  into  office  is  to 
greet  all  men  promptly  by  name.  Even  in  the 
large  cities  attorneys  occasionally  step  up  in 
front  of  the  twelve  jurors  and  without  looking 
at  a  note  or  memorandum  manage  personally  to 
address  each  one  of  them  correctly.  If  a  lawyer 
begins  this  he  must  go  through  the  entire  twelve, 
because  if  he  calls  eleven  by  name  and  skips  the 


COURT  ROOM  CONDUCT.  55 

twelfth  one  the  last  man  will  be  offended  to  think 
that  he  is  not  considered  as  important  as  the 
others. 

While  engaged  in  taking  the  jury  this  is  oc- 
casionally done  and  it  has  presumably  never  been 
criticized  as  improper.  There  are  courts  how- 
ever which  have  reversed  a  decision  because  the 
lawyer  spoke  to  four  or  five  of  the  jurors  thus  by 
name  during  the  arguments,  claiming  that  it  was 
an  improper  appeal  to  those  men,  to  pick  them 
out  and  speak  to  them  personally,  as  it  were,  al- 
though in  the  guise  of  an  argument.  So  there  is 
always  room  for  consideration  in  such  matters. 

Above  all  things  it  is  the  part  of  wisdom  and 
of  honor  for  the  lawyer  in  the  trial  to  be  fair  and 
square,  to  be  honest,  to  be  candid.  Every  case 
does  not  have  to  be  won.  If  the  case  is  not  just, 
it  should  not  be  won.  It  is  a  greater  wrong  to 
win  an  unjust  case  than  to  lose  a  just  one.  The 
first  is  wrong,  the  second  is  merely  a  mistake. 
It  is  the  part  of  duty  for  a  lawyer  to  develop 
honestly  and  efficiently  all  there  is  in  the  case  or 
the  strongest  there  is  in  the  defense  but  that  is 
all.  So  if  it  occurs  on  questions  c  2  law  and  ques- 
tions of  fact  that  an  error  has  been  made  the 
best  thing  to  do  is  to  frankly  admit  it.  The  old 
saying  is  a  very  true  saying,  that  "  Honesty  is 
the  best  policy, "  as  a  mere  matter  of  policy.  It 
may  happen  in  the  course  of  the  case  or  of  the 


56  TRIAL  TACTICS. 

defense  that  certain  contentions  have  been  in- 
sisted upon  and  later  some  unassailable  docu- 
ments or  book  entries  may  be  introduced  which 
conclusively  disprove  them.  As  a  mere  matter 
of  policy  it  is  best  to  admit  the  mistake  and  if 
there  is  anything  left  of  the  case  to  go  on  with 
what  is  left.  If  a  lawyer  obstinately  insists  that 
he  is  right  in  the  face  of  indisputable  documents 
the  jury  or  the  Court  will  lose  all  respect  for  him 
and  for  the  remaining  portions  of  his  case  and 
will  surely  defeat  him. 

The  reprimand  of  the  Court  is  something  to 
be  avoided  at  all  times  in  every  stage  of  the  case, 
even  from  the  moment  of  going  into  the  court 
room,  when  some  lawyers  have  been  known  to 
forget  to  remove  their  hats  and  have  incurred  a 
reprimand  from  the  Court  or  bailiff.  Of  course 
there  are  times  when  a  stand  must  be  taken  and 
the  Court  may  be  impatient,  which  cannot  be 
helped.  It  is  never  well  to  argue  with  the  Court 
because  the  Court  always  has  the  advantage.  It 
is  not  a  fair  fight  and  the  lawyer  and  his  client 
will  be  the  sufferers.  So  anything  which  will 
call  forth  a  reprimand  should  be  avoided  because 
it  is  bound  to  lower  the  lawyer  in  the  estimation 
of  the  jury.  Many  a  very  good  case  has  been 
lost  because  of  the  constant  bickering  of  the 
lawyer  with  the  Court  until  the  jury  gets  the  im- 


COURT  ROOM  CONDUCT.  57 

pression  that  the  lawyer  has  no  case  and  finds 
against  him  on  general  principles. 

The  jury,  as  a  rule,  like  fair  play.  Fairness 
is  by  all  odds  the  strongest  position  to  assume  in 
the  course  of  any  litigation  and  of  course  that  in- 
volves being  gentlemanly  and  tolerant  and  pa- 
tient. It  is  better  to  be  too  tolerant  than  not 
tolerant  enough;  to  avoid  being  the  offender. 
The  case  should  be  conducted  properly,  within 
the  bounds  of  law  and  in  a  gentlemanly  manner ; 
then  if  the  opponent  is  differently  constituted, 
if  he  is  unfair,  provokes  discussion,  makes  jeer- 
ing remarks,  the  jury  will  soon  become  prej- 
udiced against  him  and  turn  their  sympathies 
the  other  way.  The  time  comes  when  they  will 
see  that  one  man  is  being  imposed  upon,  that  the 
other  man's  insulting  remarks  are  wrong  and  un- 
fair, and  when  a  favorable  opportunity  comes  he 
can  be  crushed  with  one  effective  response.  A 
double  end  is  thus  gained.  The  antagonist  has 
been  overcome  and  the  sympathy  of  the  jury  has 
been  retained,  a  much  wiser  and  stronger  course 
than  to  follow  him  in  his  petty  bickerings  as 
some  lawyers  do ;  to  bicker  back  and  return  sneer 
for  sneer  while  both  contestants  belittle  them- 
selves before  the  jury.  A  lawyer  loses  nothing 
by  a  quiet,  controlled  demeanor,  not  hypocritical 
of  course  and  not  too  submissive,  for  the  client 's 
interests  must  be  protected  at  the  right  time,  but 


58  TEIAL  TACTICS. 

it  is  better  for  him  to  be  a  little  too  patient  rather 
than  too  contentious.  As  a  rule  the  Court  will 
of  its  own  motion  in  due  time  reprimand  the 
offender ;  the  effect  of  this  is  more  forcible  than 
if  the  reproof  comes  from  counsel. 


CHAPTER  IV. 

REPORTING  THE  CASE. 

BEFORE  going  on  with  the  jury — before  do- 
ing anything  at  all — provision  should  be 
made  to  have  a  good  reporter  in  attend- 
ance, a  stenographer  to  take  the  case.  If  it  is  a 
case  of  any  importance  which  can  at  all  afford  it, 
for  the  lawyer's  protection  and  for  the  sake  of 
his  client,  a  good  stenographer  should  be  at  hand. 
It  is  the  lawyer's  duty  to  provide  the  stenog- 
rapher because  the  client  does  not  know  the  im- 
portance of  having  one  and  if  unfavorable  re- 
sults follow  as  a  result  of  the  omission  the  attor- 
ney would  be  to  blame.  It  is  true,  litigants  are 
not  compelled  to  have  one  but  the  practice  at  the 
present  time  is  almost  dependent  upon  having  a 
stenographer.  Lawyers  may  write  up  from  their 
own  minutes  or  possibly  from  memory  a  report 
of  the  case,  especially  if  it  be  a  very  short  one  of 
little  importance  with  only  a  few  brief  witnesses. 
One  way  of  making  a  bill  of  exceptions  is  to 
write  up  the  substance  of  the  testimony  instead 
of  all  the  spoken  words  by  question  and  answer, 
but  there  is  danger  that  this  may  not  be  correct, 

59 


60  TRIAL  TACTICS. 

and  the  court  will  not  sign  it  unless  it  is  correct, 
and  the  judge  is  too  busy  to  write  it  himself.  The 
court  nowadays  expects  that  a  stenographer  be 
provided.  In  former  times  the  court  would  take 
elaborate  minutes  of  the  case  and  the  bill  of  ex- 
ceptions could  be  written  up  from  the  court's 
minutes,  but  very  few  judges  now  take  minutes 
of  a  whole  case.  They  jot  down  a  few  important 
points  just  for  their  own  information  but  not  to 
make  a  record  of  the  case. 

In  some  jurisdictions  the  court  has  an  official 
reporter  who  is  always  in  attendance  and  there 
of  course  it  is  not  necessary  to  provide  another 
one,  though  it  may  be  advisable  because  the  offi- 
cial stenographer  may  possibly  not  be  entirely 
experienced  or  may  not  work  at  satisfactory 
hours.  Suppose  in  the  trial  of  a  case  the  official 
stenographer  has  taken  the  case  until  five  o'clock 
in  the  evening  and  has  gone  home.  When  the 
lawyer  goes  to  his  office  and  wants  to  prepare 
himself  for  the  next  day's  argument,  for  a  cross- 
examination  perhaps,  and  needs  the  stenographer 
to  read  or  to  give  a  transcript  of  the  evidence 
taken  during  that  day,  or  of  portions  of  it,  he 
cannot  be  found.  He  may  have  gone  to  his  home 
in  a  distant  suburb  and  cannot  be  reached. 

Again  the  official  stenographer  may  make  mis- 
takes and  the  private  stenographer  can  act  as  a 
check  thereon  or  as  an  assistant  in  finding  mis- 


REPORTING  THE  CASE.  61 

takes  and  having  them  corrected.  It  is  interest- 
ing to  see  what  minute  accuracy  is  necessary  in 
all  stages  of  a  case.  An  illustration  of  this  oc- 
curred in  a  recent  case  in  which  a  witness -said 
that  he  had  stepped  slightly  forward;  "stepping 
slightly  forward,'*  was  the  phrase  he  used.  It 
was  taken  correctly  at  the  trial  by  the  stenog- 
rapher, it  was  transcribed  correctly,  but  when  it 
got  into  the  reviewing  court,  in  print,  in  the  ab- 
stract of  the  case  it  read  that  he  went  "stooping 
slightly  forward. ' '  It  was  about  to  be  submitted 
on  that  when  counsel  noticed  the  error  and  had 
it  corrected.  In  the  Supreme  Court  the  judges 
stood  four  for  the  case  and  three  for  the  defense, 
and  the  four  were  very  weak  for  the  plaintiff. 
If  that  correction  had  not  been  made  there  is  not 
the  slightest  doubt  that  the  court  in  reviewing 
that  case  would  have  unanimously  held  for  the 
defense. 

This  is  the  reason  that  the  apparently  unim- 
portant correction  made  such  a  vast  difference. 
The  plaintiff  was  engaged  in  a  foundry  and  at 
night  in  the  darkness  had  to  go  out  from  the 
foundry  over  a  long  pile  of  ashes  or  cinders, 
carrying  some  implement  to  the  further  edge. 
He  was  injured  by  reason  of  some  obstruction 
that  was  there  and  was  required  to  show  that  he 
himself  was  in  the  exercise  of  ordinary  care,  so 
he  testified  that  he  went  out  through  the  dark- 


62  TRIAL  TACTICS. 

ness  "stepping  slightly  forward,"  which  de- 
scribes the  exercise  of  care ;  that  is,  he  was  put- 
ting one  foot  slowly  ahead  of  the  other,  feeling 
his  way  with  care.  But  as  printed  that  he  went 
out  there  stooping  slightly  forward — he  might 
have  been  running  and  still  stooping;  in  fact 
runners  do  go  stooping.  That  was  the  only  item 
of  evidence  bearing  on  that  proposition  and  the 
burden  being  on  him  his  case  would  have  been 
necessarily  lost  in  the  reviewing  court  if  the  ab- 
stract had  contained  his  expression  in  the  form 
"stooping  slightly  forward." 

At  times  similar  misprints  or  errors  are  made 
by  the  stenographer,  though  in  this  particular 
case  it  was  not  made  by  the  stenographer  but  by 
the  printer  or  the  persons  who  prepared  the 
proof  for  the  printer,  in  printing  the  abstract  of 
the  case  for  the  upper  court. 

The  stenographer  should  be  instructed  to  take 
everything  that  occurs  from  the  very  first  mo- 
ment that  something  is  said  in  the  case.  Let 
him  put  down  everything  that  is  said  by  the  at- 
torneys, by  the  court,  by  the  jurors,  by  the  wit- 
nesses, or  anyone  else.  It  is  always  easier  to 
ignore  a  matter  afterwards  if  not  necessary  for  a 
record  than  it  is  to  supply  it  if  it  has  been 
omitted.  Sometimes  a  very  slight  expression  of 
an  attorney  is  absolutely  necessary  in  the  final 


EEPOKTING  THE  CASE.  63 

result  of  the  case,  something  that  may  be  for- 
gotten if  not  preserved  by  the  stenographer. 

In  the  opening  of  a  recent  case  the  attorney 
for  the  plaintiff  stated  his  view,  and  the  attorney 
for  the  defendant  stated  very  briefly  his  view 
of  the  theory  of  the  case.  The  trial  lasted  sev- 
eral days  and  the  listeners  had  almost  forgotten 
what  the  counsel  had  said  at  the  beginning. 
There  had  been  much  discussion  and  shifting 
about  and  questions  had  been  sprung  by  the 
court;  ultimately  the  attorney  for  the  plaintiff 
offered  some  instructions  which  the  court  gave. 
Then  the  attorney  for  the  defendant  asked  for  a 
new  trial  on  account  of  error  in  those  instruc- 
tions, which  probably  existed,  but  the  attorney 
for  the  plaintiff  compared  his  instructions  lit- 
erally with  the  statement  which  the  defendant's 
attorney  had  made  in  the ,  opening  of  the  case 
and  it  was  held  that  the  attorney  for  the  defend- 
ant could  not  complain  of  the  instruction  as  it 
was  a  literal  copy  of  what  he  himself  had  ad- 
vanced as  the  theory  of  the  case,  although  during 
the  trial  both  parties  had  shifted  away  from  it  a 
good  deal.  He  had  made  the  statement  however 
and  the  attorney  for  the  plaintiff  had  a  right  to 
rely  on  it.  So  frequently  a  mere  incidental  re- 
mark, made  by  one  or  the  other  of  the  attorneys 
which  the  reporter  preserves  may  ultimately  be 
found  necessary  to  prove  the  case  itself. 


64  TRIAL  TACTICS. 

The  attorney  for  the  defendant,  in  the  open- 
ing statement  may  say  that  the  defendant  was 
running  its  car  down  the  hill  and  so  on,  when 
it  collided  with  the  plaintiff's  wagon.  The  case 
may  last  quite  a  number  of  days  and  when  it 
comes  to  a  verdict  the  defense  may  then  claim 
that  there  was  no  proof  that  it  was  their  car, 
that  there  was  no  evidence  showing  that  their 
company  owned  the  railroad  in  question  at  all. 
The  plaintiff  will  then  turn  to  his  stenographer 
and  the  stenographer  will  read  that  in  the  open- 
ing of  the  case  the  defendant 's  attorney  said  that 
the  defendant's  car  ran  down  the  hill  and  struck 
the  plaintiff's  wagon.  That  is  as  good  as  evi- 
dence on  that  point.  It  may  be  that  the  plaintiff 
had  no  evidence  on  that  point  at  all  and  relied 
on  this  statement  as  covering  the  point.  If  the 
statement  had  not  been  made  the  plaintiff's  at- 
torney would  have  subpoenaed  witnesses  to  prove 
it.  Details  may  be  forgotten  and  only  the  gen- 
eral impression  remains  that  the  point  was  made. 
The  plaintiff's  attorney  himself  may  not  remem- 
ber exactly  how  the  point  was  covered  but  re- 
members that  in  some  way  it  was  covered  and  the 
reporter's  notes  will  come  to  his  assistance  and 
furnish  him  proof  of  it. 

The  stenographer  selected  should  be  not  only 
of  the  greatest  skill  in  order  to  secure  accuracy, 
but  also  a  person  of  good  standing  in  his  prof es- 


REPORTING  THE  CASE.  65 

sion,  that  is,  one  whom  the  courts  know  to  be  a 
skillful,  honorable  person  who  would  report  the 
matter  correctly  and  not  allow  himself  to  be 
bribed  or  hired  to  make  an  incorrect  report.  Re- 
porters have  the  opportunity  and  power  to  make 
incorrect  reports  and  to  do  a  great  deal  of  mis- 
chief. Sometimes  a  word  or  two  omitted  or 
inserted  would  make  the  case  entirely  different. 
It  is  of  the  most  importance  that  figures  and 
fractions  be  heard  correctly  and  taken  down  cor- 
rectly. Questions  of  temperature,  at  which  iron 
may  be  worked,  for  instance,  or  the  temperature 
at  which  articles  were  kept,  may  play  an  impor- 
tant part  in  the  evidence  and  a  witness's  exact 
testimony  can  later  be  verified  only  by  the  stenog- 
rapher. Of  course  the  lawyers  take  notes  but 
their  notes  are  not  very  accurate  and  not  entirely 
reliable  and  they  sometimes  become  confused  in 
their  own  notes. 

Another  advantage  in  having  a  reliable  stenog- 
rapher is  that  he  can  be  counted  upon  to  be  per- 
manent in  his  location.  The  shorthand  notes 
that  the  stenographer  has  taken  may  be  needed 
later,  in  the  next  term  of  court  perhaps  or  the 
next  year,  or  in  ten  or  fifteen  years.  One  case 
may  come  and  go  though  all  the  courts  until  after 
six  or  seven  years  it  may  be  decided  and  then 
another  case  may  grow  out  of  that  one,  and  by 
the  time  the  second  case  is  reached  for  trial  it 


66  TRIAL  TACTICS. 

may  become  important  to  know  what  had  been 
said  at  the  beginning  of  the  first  case.  There 
may  have  been  two  or  three  trials  of  a  case. 
They  drag  through  the  courts  at  fearful  length. 
The  writer  has  a  case  which  has  been  going  fif- 
teen years  and  is  very  apt  to  go  fifteen  years 
longer.  The  note  books  of  the  reporter  are  very 
important  in  those  circumstances.  Of  course 
the  transcript  can  be  kept  but  the  transcript  is 
not  evidence,  if  anyone  stands  on  a  technicality. 
The  reporter  and  his  minutes  must  be  found. 
The  reporter  cannot  profess  to  remember  the 
evidence.  All  he  can  do  is  to  identify  the  tran- 
script, find  the  minutes  back  of  that  and  then 
read  from  his  minutes.  Possibly  he  would  be 
allowed  to  testify  that  his  minutes  had  been  made 
fully  and  correctly  and  that  the  transcript  was 
made  by  him  fully  and  correctly  from  his  min- 
utes, and  under  these  circumstances  it  might  be 
allowed. 

The  transcript  is  very  often  needed  by  the 
judges  in  settling  the  bill  of  exceptions;  there 
may  be  a  long  delay  after  the  trial  before  the  bill 
is  made.  The  transcript  is  very  important  in 
arguing  a  motion  for  a  new  trial.  Of  course 
those  are  shorter  intervals,  and  almost  any  re- 
porter would  suffice  there — that  is  he  would  not 
have  to  be  permanent  in  the  place,  provided  he 
was  accurate  and  competent,  and  enjoyed  the 
confidence  of  the  court. 


CHAPTER  V. 

CALLING  THE  JURY. 

THE  first  proposition  in  the  case  itself  is  the 
calling  of  the  jury.  The  jurors  must  be 
examined  to  see  whether  they  are  fit  to 
serve  in  the  case.  There  are  technically  two 
openings  to  the  jury.  First  the  case  is  opened 
before  the  jurors  are  examined;  next  the  jurors 
are  examined ;  then  the  jurors  are  accepted ;  and 
then  the  case  is  opened  before  the  evidence  is  put 
in.  The  first  opening  before  examining  the 
jurors  is  merely  a  short  preliminary  statement 
to  inform  the  jurors  in  a  general  way  of  the  na- 
ture of  the  litigation.  No  details  are  supposed 
to  be  stated  in  that.  It  is  not  in  place  to  do  so 
and  may  call  forth  the  reprimand  of  the  court. 
In  a  case  for  instance,  where  the  plaintiff  has 
replevied  a  threshing  machine  from  the  defend- 
ant an  adequate  opening  before  the  examination 
of  the  jurors  may  be  like  this : 
"May  it  please  the  Court  and  Gentlemen  of  the 

Jury: 

This  is  a  case  where  John  Doe,  the  plaintiff, 
has  replevied  a  threshing  machine  from  Richard 

67 


68  TKIAL  TACTICS. 

Roe,  the  defendant,  and  that  is  involved  in  this 
case.  Now,  Gentlemen  of  the  Jury,  I  will  speak 
to  all  twelve  of  you  on  this  rather  than  to  waste 
time  by  asking  each  one  of  you  separately :  '  Has 
any  one  of  you  ever  observed  a  case  of  this 
kind1?'  " 

Too  much  care  cannot  be  used  in  the  very  first 
utterance  to  the  jury  to  avoid  saying  anything 
that  may  prejudice  them  unfavorably,  and  to 
avoid  implications  that  may  be  derogatory  to 
some  of  them.  When  the  jurors  are  to  be  drawn 
out  on  any  proposition  it  must  be  done  in  a  man- 
ner that  will  not  offend  them.  If  for  instance 
the  attorney  is  prosecuting  a  man  for  stealing 
a  horse  and  he  fears  that  perhaps  one  of  those 
twelve  jurors  may  have  been  a  horse  thief  in  his 
youth  and  may  have  some  sympathy  for  the  ac- 
cused it  would  not  be  the  part  of  diplomacy  to 
say :  ' i  Gentlemen  of  the  Jury :  This  is  a  prose- 
cution against  the  defendant  for  stealing  a  horse. 
Has  any  one  of  you  ever  stolen  a  horse?"  A 
less  direct  but  more  tactful  way  to  elicit  the  re- 
quired information  would  be:  "Gentlemen  of 
the  Jury,  the  accused,  here,  is  on  trial  charged 
with  stealing  a  horse  and  it  is  the  earnest  desire 
of  the  prosecution,  and  no  doubt  also  of  the  de- 
fense, to  find  jurors  who  have  no  opinion  and  no 
bias  in  a  litigation  of  this  kind;  so  let  me  ask  you 
in  general,  has  your  attention  ever  been  attracted 


CALLING  THE  JURY.  69 

directly  or  indirectly  to  a  litigation  of  this  kind 
in  such  a  way  as  to  influence  your  judgment? 
Possibly  you  have  been  witnesses  or  served  on  a 
jury  and  tried  causes  of  this  nature  or  some 
such  matter  has  otherwise  come  to  your  atten- 
tion." That  is  enough.  Assuming  that  they 
answer  honestly  they  will  all  answer  in  the  nega- 
tive, that  they  have  never  had  any  circumstance 
to  direct  their  attention  to  that  kind  of  a  trial. 
If  any  one  of  them  had  ever  been  mixed  up  in 
such  an  affair  he  would  probably  say  that  he  had 
been  through  some  such  matter  and  had  rather 
made  up  his  mind,  which  would  be  hint  enough 
possibly  to  excuse  him  or  at  least  to  question 
further. 

Sometimes  in  cases  where  people  have  been 
injured  the  jurors  are  asked  whether  they  have 
ever  had  any  experience  in  a  case  of  this  kind. 
Presently  some  one  will  say,  "Yes,  I  was  plain- 
tiff myself,  some  years  ago,  against  a  railroad. 
I  was  injured  and  sued  the  company."  That 
should  be  hint  enough  for  the  defendant  to  ex- 
cuse that  man  because  he  fears  that  the  man  is 
of  the  opinion  that  the  company  was  wrong  in 
his  case  and  that  he  will  naturally  assume  that 
the  company  is  wrong  in  the  case  to  be  tried. 

At  the  time  of  acquainting  the  jury  with  the 
general  subject  matter,  as  well  as  in  the  opening 
of  the  case  itself  after  the  jury  is  taken  and  be- 


70  TRIAL  TACTICS. 

fore  any  evidence  is  submitted,  the  general  plan 
must  be  laid  of  how  it  is  proposed  to  treat  the 
case  in  its  entirety  as  it  develops.  The  leading 
thought  in  this  must  be  not  to  disappoint  the 


Suppose  that  a  client  has  had  his  hand  injured 
in  a  machine  so  that  the  small  finger  and  the 
finger  next  to  it  are  entirely  gone  and  the  middle 
finger  is  lost  at  the  middle  joint.  That  is  a  very 
serious  injury  but  there  is  a  good  deal  left  of  the 
hand  ;  the  thumb  and  first  finger  of  that  hand  are 
still  serviceable.  It  will  not  do  in  opening  such 
a  case  to  say  to  the  jury:  "Gentlemen,  this  is  a 
case  where  my  client  has  been  deprived  of  his 
hand,"  because  afterwards,  when  it  comes  to  the 
evidence  and  they  expect  to  see  the  fearful  mu- 
tilation or  the  loss  of  the  whole  hand  and  find 
that  more  than  half  of  the  hand  is  still  there, 
their  tendency  is  to  say,  "That  is  not  so  bad  an 
inquiry  as  we  were  led  to  expect."  Whereas  if 
the  statement  is  made:  "This  is  a  case  where 
my  client  has  suffered  somewhat  through  an  in- 
jury to  his  hand  ;  you  will  find  that  he  has  lost  a 
portion  of  his  hand,"  and  then  a  hand  is  shown 
with  two  fingers  entirely  gone  and  another  finger 
gone  at  the  middle,  they  will  say:  "That  is  a 
very  bad  hand."  It  is  only  an  application  of 
the  universal  rule  that  if  too  great  expectation 
is  aroused  the  result  is  a  disappointment  ;  where- 


CALLING  THE  JURY.  71 

as  if  expectation  is  kept  within  reasonable 
bounds  the  result  is  a  favorable  surprise.  The 
actuality  should  always  be  greater  instead  of 
less  than  the  expectation. 

When  the  case  is  opened  fully  the  jury  is  told 
in  detail  the  questions  which  they  are  expected 
to  solve,  as,  for  instance,  that  the  plaintiff  sues 
for  the  value  of  a  certain  machine,  that  it  is  ex- 
pected the  defendant  will  claim  the  machine  was 
not  up  to  warranty  and  that  the  trouble  was  that 
some  of  the  gearing  which  had  been  represented 
to  be  of  a  certain  quality,  describing  it,  was  of 
a  very  defective  quality — and  so  on.  After  the 
jury  has  been  accepted  the  evidence  on  both  sides 
is  submitted.  Then  the  counsel  for  the  plaintiff 
again  speaks  to  the  jury  in  the  opening  address 
or  argument ;  after  that  the  defendant  argues,  if 
such  is  the  case,  and  then  the  plaintiff  closes. 
The  plaintiff's  attorney  addresses  himself  to  the 
jury  four  times  and  he  should  be  very  careful 
that  he  does  not  tire  them,  as  there  is  danger  of 
doing  where  a  man  has  to  speak  so  frequently. 
It  is  advisable  therefore  if  there  are  two  lawyers 
on  a  side  to  divide  up  the  work,  if  both  are  com- 
petent, so  that  the  different  personalities  and 
style  of  address  may  furnish  a  little  diversion  to 
the  jury. 

The  examination  of  the  individual  jurors  is 
called  the  voir  dire;  in  this  examination  the 


72  TRIAL  TACTICS. 

jurors  are  required  to  answer  in  regard  to  their 
qualifications  to  serve  on  that  trial.  There  may 
be,  even  prior  to  that  in  civil  cases  and  quite 
often  in  criminal  cases  a  challenge  to  the  array  or 
panel  of  the  entire  jury.  It  may  be  claimed  by 
the  one  party  or  the  other  that  the  entire  jury 
has  been  illegally  chosen.  In  that  case  there 
is  a  step  to  be  taken  to  wipe  out  that  jury  alto- 
gether and  have  a  new  jury  chosen.  But  it  will 
be  assumed  that  the  jury  has  been  properly 
called. 

In  general  terms  the  examination  of  the  jury 
should  be  befitting  the  circumstances.  In  a  very 
small  case  for  instance,  where  the  amount  is 
trifling  and  the  question  very  simple,  it  clearly 
would  be  poor  taste  and  possibly  unfavorable 
to  the  result  of  the  case  for  either  side  to  insist 
upon  a  very  searching  and  thorough  examination 
of  the  jury.  If  the  plaintiff's  lawyer  did  this 
the  jury  would  be  led  to  expect  some  momentous 
case,  to  which  they  were  to  pay  very  strict  atten- 
tion and  for  which  the  best  possible  material  was 
wanted  in  the  jury  and  they  would  be  disap- 
pointed when  the  trivial  little  case  developed. 
On  the  other  hand  if  the  defendant 's  lawyer  in- 
sisted upon  an  over  rigorous  examination  the 
jury  would  very  probably  get  the  impression  that 
he  was  afraid  of  the  plaintiff's  case,  that  there 
was  something  weak  about  his  side  of  it  which 


CALLING  THE  JURY.  73 

might  lead  to  his  defeat.  So,  as  in  everything 
else  in  the  world,  cases  must  be  adapted  to  cir- 
cumstances. If  the  jury  is  to  take  a  compara- 
tively small  case  the  amount  involved  being  small 
and  the  questions  few  the  more  quickly  it  is 
taken  the  better  it  probably  will  be.  The  jury 
likes  to  have  confidence  shown  in  them  and  one  of 
the  best  ways  to  take  the  jury,  if  it  is  deemed  per- 
fectly safe,  is  simply  to  say,  when  it  has  been 
seen  that  the  other  side  has  asked  practically  all 
that  is  necessary,  "'Your  Honor,  this  jury  is  en- 
tirely satisfactory  to  me. ' '  This  produces  a  feel- 
ing that  the  lawyer  has  confidence  in  them  and 
on  their  part  a  responsive  feeling  of  respect  and 
confidence.  This  general  proposition  of  course 
must  always  be  predicated  upon  safety.  There 
might  be  something  in  that  jury  which  it  would 
not  do  to  take  and  it  may  be  necessary  to  find  it 
out,  which  will  be  presently  considered. 

There  may  be  two  ways  of  taking  a  jury :  One 
is  to  take  them  in  blocks  of  four,  the  other  is  to 
take  the  whole  twelve  at  once.  As  a  general 
thing  in  civil  cases  the  whole  twelve  are  taken; 
that  is,  the  plaintiff  examines  the  entire  twelve 
jurors  and  if  satisfied  with  them  tenders  the 
twelve  to  the  defense  and  then  the  defense  ex- 
amines them.  There  is  a  privilege  or  right  for 
the  plaintiff  to  examine  four  jurors  and,  being 
satisfied  with  them  to  tender  those  four  to  the 


74  TKIAL  TACTICS. 

defendant.  Then  the  defendant's  attorney  ex- 
amines those  four  and  being  satisfied  with  them 
accepts  them  and  they  are  sworn  as  jurors. 
Lawyers  in  defending  criminal  cases  and  lawyers 
for  railroads,  in  defending  their  damage  cases, 
or  in  any  such  cases  for  the  defense  may  claim 
that  it  is  a  slight  advantage  to  them  for  the 
jurors  to  be  called  in  fours.  The  reason  that 
they  consider  this  method  a  slight  advantage  for 
the  defendant  is  as  follows :  If  the  plaintiff  has 
the  whole  twelve  of  the  jury  before  him  he  can 
use  his  peremptories  to  better  effect  because  he 
can  tell  better  which  of  the  men  are  least  de- 
sirable by  seeing  them  all  together. 

There  is  much  juggling  sometimes  in  the  mat- 
ter of  peremptories,  especially  in  the  small  coun- 
ties where  everybody  knows  every  one  else. 
Peremptories  are  sometimes  used  to  get  rid  of 
jurors,  not  because  they  are  undesirable,  but  to 
get  them  out  in  order  that  some  others  seen  about 
the  court  room  may  be  chosen,  who  may  be 
friendly  to  one  of  the  lawyers  or  litigants  and 
yet  not  disqualified.  The  practice  in  some  juris- 
dictions is  that  when  the  regular  panel  of  the 
jury  is  exhausted  the  sheriff  fills  the  jury  from 
the  by-standers  or  talesmen,  as  they  are  called, 
standing  about  in  attendance,  and  if  the  lawyer 
sees  some  of  his  friends  in  the  crowd  he  gets 
rid  of  as  many  of  the  jury  as  he  can.  Telepathy 


CALLING  THE  JURY.  75 

apparently  at  times  plays  a  part  in  the  selection, 
for  the  sheriff,  with  singular  perception,  at  times 
knows  exactly  which  ones  in  the  crowd  the  lawyer 
had  in  his  mind.  There  is  not  so  much  danger 
of  this  practice  in  a  large  city  where  the  jurors 
are  almost  all  strangers  and  the  jury  is  not  filled 
from  persons  in  attendance  but  from  other  jurors 
in  attendance. 

If  four  jurors  are  taken  at  a  time,  though  some 
of  them  may  not  be  quite  desirable,  the  plaintiff 
is  afraid  to  send  them  out  for  fear  he  will  get 
something  worse  and  his  peremptories  will  be 
exhausted.  So  he  will  strain  a  point  and  keep 
those  four  on  the  jury  rather  than  send  any  of 
them  out  at  the  risk  of  getting  worse.  So  he  gets 
the  first  four  and  the  second  four  and  the  third 
four  and  the  jury  is  completed  with  some  unde- 
sirable men  on  it,  because  after  he  has  once  said 
he  will  take  those  four  he  has  to  keep  them.  The 
reason  that  this  method  is  more  disadvantageous 
to  the  plaintiff  than  to  the  defendant  is  that  the 
defense  gains  by  a  single  undesirable  man  on  the 
jury  because  it  may  lead  to  a  small  verdict  or 
a  disagreement  and  the  defense  can  tire  out  the 
plaintiff  with  a  succession  of  mis-trials  or  hung 
juries.  Twelve  desirable  men  are  required  to 
make  a  large  verdict  for  the  plaintiff  but  one 
undesirable  man  may  spoil  it.  He  may  hold  out 
for  a  small  verdict  or  no  verdict  which  will  result 


76  TRIAL  TACTICS. 

in  a  disagreement  or  a  hung  jury,  and  the  de- 
fendant always  gains  by  that,  for  the  plaintiff  is 
eventually  glad  to  settle.  For  the  same  reason 
attorneys  for  the  defendant  sometimes  care  very 
little  about  the  entire  twelve  on  the  jury.  If  they 
can  get  two  or  three  or  four  good  strong  men 
who  appear  favorable  and  who  will  stand  by  their 
opinions  that  is  all  they  care  for.  That  may  do 
for  the  defendant  but  it  will  not  do  for  the  plain- 
tiff because  one  undesirable  man  is  as  much  harm 
to  the  plaintiff  as  eleven  are  to  the  defendant. 

Some  things  depend  upon  the  locality  in  which 
a  lawyer  practices.  If  he  practices  in  a  small 
community  his  general  method  must  be  some- 
what different  from  that  which  he  would  use  if 
he  practiced  in  a  county  of  two  millions  of  people 
or  more.  In  Chicago  it  is  customary  to  throw 
off  from  the  jury  any  one  who  has  any  acquaint- 
ance whatsoever  with  the  opposition.  If  there 
is  a  man  on  the  jury  who  says  he  knows  either 
the  opposing  litigant  or  the  opposing  lawyer,  as 
a  rule  he  is  challenged  off.  There  is  always  a  lit- 
tle apprehension  that  he  might  be  influenced  by 
his  acquaintance  no  matter  how  strongly  he  says 
he  will  not  be.  In  a  small  community  that  would 
not  be  possible  because  everyone  knows  everyone 
else  and  some  chances  must  be  taken.  If  John 
Doe — on  the  jury — a  highly  respected  man  in 
that  community,  says  he  knows  the  defendant 


CALLING  THE  JURY.  77 

and  the  plaintiff  challenges  John  Doe  the  other 
jurors  will  have  an  idea  from  the  fact  that  he 
was  rejected  that  he  thought  well  of  the  defen- 
dant and  they  will  therefore  infer  that  the  defen- 
dant is  probably  right  if  he  has  such  estimable 
friends  as  Mr.  Doe.  Every  challenge,  for  what- 
ever cause,  produces  a  slight  reaction  of  this  sort. 
Therefore  it  is  not  well  to  challenge  too  freely 
unless  there  is  a  sufficient  reason. 

In  some  respects  however  inquiry  in  small 
towns  must  be  more  searching  than  in  large  cities 
because  so  many  matters  may  center  right  in  the 
jury.  For  instance  the  plaintiff  is  a  large 
grocery  concern  and  is  suing  a  retail  grocer  for 
a  considerable  bill  of  stuff  that  it  has  sold  to  the 
defendant.  On  the  jury  is  a  man  who  is  cashier 
of  the  bank  in  that  small  town.  It  is  altogether 
likely  that  that  bank  has  been  lending  money  to 
the  defendant,  because  in  a  small  town  every 
business  man  is  borrowing  money  somewhere  or 
other. 

When  the  cashier  is  asked  by  the  plaintiff's 
attorney,  "Have  you  any  interest  in  this  con- 
troversy1?" he  would  conscientiously  answer  no, 
but  probably  in  a  very  close  case  the  cashier,  even 
if  the  most  honest  of  men,  would  decide  for  the 
defendant  because  his  subconscious  reflection 
would  be  like  this :  "  If  I  decide  for  the  plaintiff 
and  it  runs  into  execution  to-morrow  against  this 


78  TRIAL  TACTICS. 

defendant  and  they  lock  him  up,  where  does  our 
bank  get  its  money?"  and  his  judgment  would 
involuntarily  be  influenced. 

Another  case  in  a  small  town  may  be  used  for 
illustration,  in  which  an  electric  car  company 
is  being  sued.  The  lawyer  for  the  plaintiff  may 
think  he  is  doing  his  full  duty  when  he  asks  a 
juror  if  he  is  a  stockholder  in  the  electric  rail- 
way company.  He  replies  that  he  is  not,  that  he 
has  no  interest  in  it  whatever.  He  is  kept  as  a 
juror,  the  plaintiff  is  beaten ;  and  it  is  afterwards 
learned  that  that  juror  persuaded  all  the  others. 
It  is  subsequently  disclosed  that  he  owns  a  sub- 
division two  or  three  miles  out;  that  he  had 
divided  his  property  into  small  town  lots  which 
he  wanted  to  sell  and  that  naturally  he  is  inter- 
ested in  the  welfare  of  that  electric  company.  If 
they  are  making  money  he  can  ask  them  to  put 
on  more  cars,  whereas  if  the  company  is  crippled 
with  judgments  they  may  not  be  able  to  afford 
them.  Unconsciously  perhaps  this  reflection 
runs  through  that  man's  mind  and  though  he 
answers  the  questions  honestly,  because  accord- 
ing to  the  statute  he  is  not  interested  in  that 
company,  indirectly  he  desires  its  welfare. 

In  every  jurisdiction  may  be  found  either  by 
statute  or  by  the  common  law  principles — nearly 
always  by  statute — certain  grounds  on  which  a 
juror  may  be  challenged.  If  those  grounds  exist 


CALLING  THE  JURY.  79 

the  challenge  is  made  and  the  court  permits  the 
juror  to  be  put  off  the  panel.  Also  either  by 
statute  or  by  the  common  law — in  addition  to  the 
challenges  for  cause — are  permitted  a  certain 
number  of  peremptory  challenges,  challenges 
which  may  be  exercised  without  giving  any  rea- 
son. 

Great  care  must  be  exercised  that  the  challenge 
when  made  is  sure  to  be  a  correct  one  because  if 
one  is  made  which  is  not  right — if  for  instance 
a  challenge  is  made  for  cause  and  that  cause  is 
not  laid  down,  and  the  court  denies  the  challenge, 
that  juror  will  be  offended.  So  also  if  an  ad- 
ditional peremptory  challenge  is  made  to  which 
a  lawyer  is  not  entitled  the  object  of  that  chal- 
lenge naturally  will  become  unfavorably  dis- 
posed. He  may  be  a  fair-minded  man,  desirous 
of  doing  his  duty  but  he  involuntarily  has  be- 
come a  little  hostile  in  his  attitude.  So  it  is  a 
dangerous  thing  to  challenge  if  there  is  the 
slightest  doubt  that  the  challenge  will  be  allowed ; 
it  is  better  to  take  a  chance  in  not  challenging. 

It  may  happen  that  a  man  is  justly  challenged 
for  cause  but  that  the  court  overrules  the  chal- 
lenge and  does  not  put  him  out  and  the  ill-will 
of  that  juror  is  incurred.  After  that  the  lawyer 
may  have  three  peremptory  challenges  and  use 
only  two  of  them.  The  case  is  lost  and  then  ap- 
pealed and  it  is  argued  in  the  upper  court  that 


80  TKIAL  TACTICS. 

the  court  below  refused  to  put  that  man  out  when 
he  was  challenged  for  cause  and  therefore  the 
court  erred.  The  upper  court  may  hold,  "Yes, 
the  trial  court  erred,  but  the  lawyer  had  one  per- 
emptory left  and  had  an  opportunity  to  correct 
that  error  and  should  have  put  that  man  out  on 
that  peremptory.  Not  having  done  that  he  has 
waived  the  error."  It  is  the  rule  in  law  and  in 
every  phase  of  the  law  that  individuals  must 
protect  themselves  in  every  reasonable  way  be- 
fore they  claim  the  protection  of  the  court  or  of 
any  one  else.  "The  gods  help  those  that  help 
themselves,"  is  a  principle  that  runs  through  all 
law  as  it  runs  through  all  human  relations.  If 
a  man  neglects  to  close  up  a  window  leading  into 
the  basement  of  his  house  and  the  water  rushes 
into  that  window  and  destroys  his  furniture 
stored  in  there,  and  it  is  seen  that  for  fifty  cents 
he  might  have  gotten  a  board  and  nailed  up  that 
window,  the  chances  are  that  if  he  sues  he  will 
recover  just  fifty  cents,  what  it  would  have  cost 
him  to  have  protected  himself.  So  in  this  case 
if  the  man  could  not  be  gotten  off  by  challenge 
for  cause,  because  the  court  made  a  mistake,  the 
available  peremptory  challenges  should  have 
been  exhausted  in  order  to  preserve  the  point 
that  it  was  error  in  the  court  not  to  let  that  man 
out.  If,  however,  all  the  peremptories  had  been 


CALLING  THE  JURY.  81 

used  on  some  other  jurors  the  error  could  be  pre- 
served on  this  party. 

While  examining  the  juror  on  a  challenge  for 
cause  it  is  proper  to  examine  him  very  thorough- 
ly, even  slightly  beyond  what  would  be  simple 
cause;  it  has  been  held  that  there  is  a  right  to 
examine  further  than  that,  in  order  to  learn  the 
manner  and  nature  of  the  juror  so  that  it  may  be 
determined  whether  the  peremptory  shall  be  used 
on  him  at  all  or  not.  In  this  matter  there  is 
quite  a  difference — as  in  all  the  steps  of  the  case 
there  is  quite  a  difference  in  the  practice  in  the 
various  jurisdictions. 

In  some  States  for  instance  it  is  held  that  if 
during  the  examination  or  indeed  during  the 
trial  something  comes  to  the  attention  of  the 
juror  which  is  injurious  to  one  side  and  erron- 
eous it  is  the  lawyer's  duty  then  and  there  to  try 
to  stop  the  trial  by  moving  for  a  venire  de  novo, 
a  new  jury. 

In  other  jurisdictions  it  is  held  that  the  in- 
jured side  must  object  to  such  improper  and 
prejudicial  matter  and  the  court  will  sustain  the 
objection  and  also  tell  the  jury  to  ignore  it. 
Which  however,  is  of  dubious  effect  because 
sometimes  the  more  they  are  told  to  ignore  a 
thing  the  greater  the  impression  it  makes  upon 
their  minds. 


CHAPTER  VI. 

CLASSIFICATION   OF  JURORS. 

THE  nature  of  the  case  must  in  a  general 
way  determine  the  class  of  jurors  that 
will  be  most  desirable.  In  general  groups 
the  criminal  cases  differ  from  the  civil  cases  and 
the  civil  cases  may  be  divided  into  those  appeal- 
ing greatly  to  the  emotions  and  those  appealing 
altogether  to  the  intellect. 

Where  it  is  necessary  to  hold  jurors  against 
sentiment  and  in  favor  of  strict  technical  rights, 
logical  jurors,  who  will  adhere  to  the  rules  laid 
down  of  logic  and  of  law  and  ignore  matters 
of  emotion  and  of  sentiment,  and  who  have  in- 
tellect enough  to  understand  the  propositions  are 
desirable.  Ordinarily,  it  may  be  said,  stupid 
jurors  are  best  for  the  plaintiff.  The  last  speech 
is  about  all  their  limited  intellect  can  retain 
when  retiring  to  consider  of  their  verdict. 

A  litigation  between  a  large  bank  and  a  rail- 
road company  on  the  question  of  a  note,  for  in- 
stance, is  more  a  matter  of  mathematics  than  of 
anything  else;  a  question  whether  one  company 
should  collect  so  many  thousand  dollars  from 

82 


CLASSIFICATION  OF  JURORS.      83 

another  company.  A  case  against  a  bank  how- 
ever in  which  the  plaintiff  is  a  poor  widow,  has  a 
strong  appeal  to  the  sympathies.  If  it  appears 
that  the  plaintiff  has  entrusted  her  hard  earned 
savings  to  the  defendant  who  fails  to  refund  and 
who  has  no  defense  to  plead  except  the  statute 
of  limitations,  it  is  plain  that  almost  every  juror, 
if  he  possibly  can,  will  decide  for  the  plaintiff, 
and  overcome  the  technical  and  what  many  think 
highly  unjust  defense  of  limitations.  In  a  case 
of  that  sort  a  very  cold-blooded  jury  is  required 
for  the  defense,  rigidly  conscientious  men,  great 
sticklers  for  the  law,  technically  interpreted, 
men  who  are  bound  by  their  oath  against  all  sen- 
timent. 

Between  similar  litigants  the  defense  of  the 
statute  of  frauds  would  probably  be  looked  upon 
by  most  juries  as  a  harsh  and  technical  defense 
and  one  which  they  would  use  any  means  to  over- 
throw, though  if  the  litigants  were  reversed,  and 
the  plaintiff  happened  to  be  a  "  chattel  mort- 
gage shark,7'  incorporated,  suing  a  poor  strug- 
gling man,  a  defendant  who  had  possibly  for 
several  years  been  paying  high  interest  and  who 
had  pleaded  bankruptcy,  they  would  probably 
sustain  for  him  the  statute  of  frauds  or  the  stat- 
ute of  bankruptcy  or  the  statute  of  limitations 
or  any  other  available  statute  or  principle  that 
might  be  called  to  their  attention. 


84  TRIAL  TACTICS. 

Again  if  a  lawyer  recognizes  that  his  case  is 
weak  but  he  has  the  last  speech  he  would  natu- 
rally try  to  get  as  jurors  men  who  are  more  read- 
ily swayed  by  the  emotions  rather  than  those 
jurors  who  are  intensely  intellectual  and  logical 
and  on  whom  oratorical  eloquence  would  have  no 
effect;  while  if  he  has  a  strong  defense,  but  a 
technical  one,  he  would  try  to  get  intellectual, 
unemotional  men  who  would  not  be  carried  away 
by  their  sympathies.  In  damage  cases  against 
factories,  railroads  or  other  large  companies 
where  the  natural  sympathy  is  for  the  plaintiff, 
and  the  defense  is  a  technical  and  artificial  one, 
such  as  fellow-servant,  contributory  negligence 
or  assumed  risk,  men  of  strong  intellectual  quali- 
ties are  required  who  will  solve  the  matter  as 
they  would  an  irksome  mathematical  problem, 
but  solve  it  correctly. 

Several  other  features  should  be  considered  in 
the  choice  of  a  jury,  such  as  the  occupations  or 
professions  that  are  involved  in  the  particular 
hearing,  in  the  evidence  and  in  the  argument. 
In  a  case  against  a  physician  for  malpractice 
for  instance,  where  the  jurors  naturally  would 
be  much  influenced  by  sympathy  for  the  plaintiff, 
the  defendant  would  do  well  to  get  as  many  pro- 
fessional men  on  the  jury  as  possible,  architects, 
civil  engineers,  contractors  who  build  houses, 
superintendents  of  factories,  men  whose  occupa- 


CLASSIFICATION  OF  JUKORS.      85 

tions  or  professions  are  such  that  they  them- 
selves might  make  a  mistake  once  in  a  while,  just 
as  it  is  alleged  this  physician  made  a  mistake. 
Their  general  inclination  would  be  to  hold  with 
the  defendant,  unconsciously  perhaps,  but  they 
would  be  a  bit  slow  to  convict  another  man  of 
negligence  and  make  him  pay  large  damages 
when  in  their  own  positions  some  slight  inatten- 
tion on  their  part  might  bring  a  similar  litiga- 
tion on  them.  On  the  other  hand  jurors  who 
had  no  occupations  of  moment,  who  had  never 
felt  the  weight  of  responsibility  might  not  con- 
sider that  something  should  be  allowed  by  way 
of  extenuation  or  excuse  for  the  defendant  and 
they  would  be  very  much  for  the  plaintiff  and 
against  the  defendant. 

In  the  general  divisions  of  jurors  nationality 
is  another  important  basis  of  classification.  In 
this  respect  the  parties  litigant  must  be  consid- 
ered, the  opposing  lawyers  and  the  witnesses  that 
may  appear  on  one  side  or  the  other — especially 
the  strong  or  leading  witnesses  who  cover  the 
chief  points  in  the  case  and  upon  whose  veracity 
the  trial  hinges.  There  is  no  doubt  that  "blood 
is  thicker  than  water. ' '  People  are  instinctively 
clannish,  and  those  of  the  same  nationality  will 
side  with  each  other  rather  than  with  an  alien. 
In  a  recent  trial  of  a  man  of  one  nationality  ac- 
cused of  killing  his  wife  who  was  of  quite  dif- 


86  TRIAL  TACTICS. 

ferent  nationality,  the  prosecuting  lawyer  con- 
stantly challenged  off  from  the  jury  the  men  of 
the  same  nationality  as  the  accused,  whereas  the 
defending  lawyer  challenged  off  men  of  the 
same  nationality  as  the  deceased  wife,  and  it  was 
proper  practice.  Any  lawyer  would  feel  that  he 
was  delinquent  in  his  duty  if  he  did  not  do  that. 
The  case  might  come  out  all  right  and  the  law- 
yers feel  that  the  challenged  juror  might  just 
as  well  have  stayed  on  if  he  was  an  honest  man 
— but  if  he  were  not  put  off  and  the  case  did  not 
come  out  right,  the  lawyer  and  doubtless  his  cli- 
ent would  feel  that  he  had  made  a  mistake  and 
that  the  case  was  lost  because  the  juror's  nation- 
ality was  on  the  opposite  side.  Of  course  in  the 
light,  small  cases,  which  do  not  get  very  deeply 
into  the  minds  of  the  jurors  and  are  readily 
solved  it  is  not  so  important,  but  in  a  serious 
case  it  is  considered  a  very  important  factor. 

The  matter  of  religion  has  to  be  considered  in 
a  similar  manner,  if  anything  even  more  than 
the  matter  of  nationality.  There  are  few  things 
which  so  strongly,  though  usually  unconsciously 
prejudice  people  as  the  matter  of  religion.  The 
minds  of  even  the  most  honest  men  are  biased 
by  the  fact  that  they  belong  to  a  certain  creed  or 
religion,  and  they  would  be  slow  to  discredit  a 
man  of  their  own  religion  and  to  give  belief  to 
one  opposing  him  who  belonged  to  an  opposite  re- 


CLASSIFICATION  OF  JURORS.      87 

ligion.  It  is  a  practically  invariable  psycholog- 
ical fact  that  if  a  witness  and  a  juror  in  a  case 
belong  to  the  same  religion  while  the  opposing 
witness  belongs  to  another  the  juror  will  be 
strongly  predisposed  to  believe  the  witness  from 
his  own  church.  At  all  events  strong  affirmative 
weight  of  evidence  will  be  required  to  cause  him 
to  reverse  his  beliefs.  Not  that  the  juror  says, 
"I  will  believe  him  because  he  is  in  my  church," 
but  that  he  unconsciously  assumes  the  credibil- 
ity of  his  brother  member.  So  the  religious  ele- 
ment is  a  very  powerful  element  and  one  that 
must  be  considered. 

The  matter  of  what  might  be  called  artificial 
bonds  is  at  times  even  stronger  than  natural 
bonds;  the  natural  bonds  people  are  born  into 
and  perhaps  would  like  to  break  but  the  artificial 
bonds  they  enter  voluntarily.  So  membership 
in  the  same  societies,  the  Masonic  Order,  the 
Odd  Fellows,  or  Knights  of  Pythias,  for  instance 
may  be  a  very  strong  influence.  If  one  of  the 
jurors  in  a  case  is  a  Free  Mason  and  the  prin- 
cipal witness  is  also  a  Free  Mason  and  he  is 
contradicted  by  a  witness  who  is  not  a  member 
of  the  order,  it  is  very  probable  that  other  things 
being  equal  the  juror,  though  intending  to  be 
perfectly  honest  would  be  inclined  to  believe  his 
fellow  Mason.  The  G.  A.  R.  is  another  influen- 


88  TEIAL  TACTICS. 

tial  organization  between  whose  members  strong 
bonds  of  fellowship  exist. 

Sometimes  an  appeal  to  a  jury  on  the  grounds 
of  fellowship,  if  it  can  not  be  avoided  in  any 
other  way  may  be  anticipated  and  discounted. 
In  a  recent  case  against  the  City  of  Chicago  in 
which  the  plaintiff  was  injured  on  a  defec- 
tive sidewalk  and  sued  the  city,  three  of  the 
jury  were  saloon-keepers.  They  were  undesir- 
able jurors  for  the  plaintiff.  When  a  saloon- 
keeper is  on  the  jury  the  attorney  for  the  city 
may  be  expected  to  work  in  allusions  to  the  effect 
that  if  the  city  is  burdened  with  paying  heavy 
damages  to  people  injured  on  the  sidewalks  it 
will  have  to  increase  its  taxes  and  possibly  will 
have  to  increase  its  license  fees.  This  catches 
the  attention  of  saloon-keepers  who  are  afraid 
that  they  may  have  to  pay  a  higher  fee  and  who 
also  catch  the  implication  that  the  city  is  watch- 
ing them.  They  know  that  there  is  some  connec- . 
tion  between  the  city  and  the  police  and  they  fear 
that  some  day  the  police  will  come  and  close  them 
up.  It  is  no  cause  for  challenge  that  a  man  is 
a  saloon-keeper;  a  man  who  keeps  a  saloon  has 
just  as  good  right  according  to  law  to  be  a  juror 
as  anybody  else  has.  If  peremptory  challenges 
had  been  used  in  this  case  it  would  have  been 
necessary  to  challenge  all  three  or  none  because 
if  only  two  of  them  had  been  challenged  and  the 


CLASSIFICATION  OF  JURORS.      89 

other  challenge  held  in  reserve  the  one  man 
would  have  resented  the  slight  to  his  colleagues. 
Knowing  all  this  the  plaintiff's  attorney,  instead 
of  challenging  any  of  them  won  the  favor  of  the 
three  saloon-keepers  who  happened  to  be  Ger- 
mans by  telling  the  following  story  in  his  closing 
speech.  He  spoke  something  like  this:  "And 
now,  Gentlemen  of  the  Jury,  the  case  is  with  you. 
I  have  tried  to  do  my  duty  and  I  know  you  will 
take  pleasure  in  doing  yours.  The  City  of  Chi- 
cago is  all-powerful;  it  holds  in  its  hands  the 
property  of  the  richest  and  of  the  most  humble ; 
it  is  anxious  as  a  city  and  all  the  people  are 
anxious  as  a  people  to  do  right  and  justice  to 
everybody.  A  story  of  the  great  Emperor  Fred- 
erick comes  to  me.  When  he  was  building  his 
palace  near  Berlin,  this  beautiful  edifice  costing 
millions  was  fairly  completed  excepting  one 
wing.  Some  forty  feet  of  one  wing  had  not  been 
built  because  on  the  ground  where  it  was  to  be 
built  there  stood  the  cottage  of  a  widow  who  re- 
fused to  sell  it.  The  Emperor's  engineers  of- 
fered her  a  fabulous  price  for  the  cottage  but  she 
refused  saying  it  was  hers;  that  there  she  had 
been  born  and  there  would  she  stay  until  death. 
The  engineers  asked  the  Emperor's  permission 
to  tear  down  the  cottage.  They  said  that  they 
would  do  the  right  thing  by  her,  give  her  a  more 
beautiful  place  somewhere  else.  If  he  would  but 


90  TRIAL  TACTICS. 

say  the  word  they  would  tear  it  down  and  com- 
plete the  palace,  but  the  Emperor  replied,  'No, 
let  the  cottage  stand  as  an  evidence  that  of  all 
my  powers  the  prerogative  to  do  justice  even  to 
the  most  humble  of  my  subjects  is  predominant 
in  me!'  "  This  tribute  to  their  spirit  of  justice 
reassured  these  jurors  and  the  verdict  was  favor- 
able. 

In  the  general  selection  of  the  jury  the  ma- 
terial of  the  opponent's  case  must  also  be  con- 
sidered and  in  this  regard  anticipation  must  to 
some  extent  figure.  In  a  case  for  instance  in- 
volving a  collision  between  a  passenger  engine 
and  a  farmer's  wagon,  the  defendant  may  natu- 
rally be  expected  to  call  as  witnesses  the  train- 
crew,  the  conductor  and  the  fireman  and  possibly 
some  of  the  trainmen.  The  plaintiff  has  an  idea 
that  the  witnesses  for  the  defense  will  be  people 
of  that  kind,  which  may  give  him  some  intima- 
tion how  to  use  his  peremptories  on  the  jury.  If 
he  found  some  railroad  men  on  the  panel,  some 
of  them  possibly  belonging  to  the  railroad  em- 
ployee 's  union,  it  would  be  a  wise  thing  to  chal- 
lenge them  off  because  he  may  anticipate  that  the 
witnesses  for  the  defense  will  be  very  much  of 
the  same  general  calling  as  these  jurors. 

In  cases  involving  death  there  is  a  decided  ad- 
vantage because  it  can  be  ascertained  from  the 
coroner's  inquest  or  from  examination  of  his 


CLASSIFICATION  OF  JURORS.     91 

record  what  kind  of  men  or  women  will  appear 
as  witnesses.  In  this  way  an  outline  can  be  got- 
ten of  the  testimony,  at  least  that  of  the  princi- 
pal witnesses. 

In  criminal  cases  the  defense  learns  this  from 
the  indictment,  because  as  a  rule  in  nearly  all  the 
jurisdictions  the  names  of  the  witnesses  are  in 
some  way  appended  to  or  endorsed  on  the  indict- 
ment. In  some  States  the  accused  have  a  right 
to  be  furnished  not  only  with  the  names  of  the 
witnesses  but  with  a  transcript  of  the  testimony 
that  they  gave  before  the  Grand  Jury.  A  law- 
yer must  learn  from  his  client,  as  thoroughly  as 
possible,  all  that  he  knows  about  the  witnesses 
who  will  appear  for  the  other  side.  In  that  way 
a  great  deal  of  information  may  be  gained  on 
which  to  base  challenges.  If  a  case  has  been 
tried  before,  a  very  good  idea  of  the  witnesses 
and  of  their  testimony  may  be  obtained  from  the 
record  of  the  former  case  and  other  important 
sources  of  information  may  suggest  themselves 
in  particular  cases. 

It  will  be  found  at  times  that  jurors  have  con- 
victions of  right  and  wrong  to  which  they  adhere 
quite  positively.  If  they  are  honest  and  con- 
scientious they  will  state  these  convictions  when 
they  are  examined  and  they  may  be  ground  to 
challenge  for  cause  or  at  least  peremptorily.  It 
is  seldom  that  a  juror  deliberately  lies ;  if  he  has 


92  TRIAL  TACTICS. 

a  preconceived  opinion  he  usually  admits  it.  If 
a  juror  does  tell  a  deliberate  lie  without  being 
discovered  and  is  taken  on  the  jury,  if  he  is 
found  out  beforevthe  trial  is  through,  a  new  jury 
must  be  moved  for  immediately.  It  will  not 
do  to  keep  quiet  and  lose  the  case  and  then  ask 
to  have  it  all  undone.  The  Court  probably 
would  not  call  an  entirely  new  jury  but  would  put 
a  new  juror  in  his  place  and  then  commence  the 
hearing  all  over  again.  If  a  juror's  deception  is 
discovered  after  the  verdict  but  still  within  the 
term  of  the  court  attempt  must  be  made  to  get 
redress  by  motion  for  a  new  trial,  and  the  decep- 
tion must  be  set  up  supported  by  affidavit.  But 
if  the  term  of  court  has  closed  and  judgment 
has  been  entered  on  the  verdict  the  only  redress 
would  be  by  bill  in  equity  or  by  statutory  pro- 
ceedings where  such  provision  is  made. 

In  the  matter  of  preconceived  opinions  many 
men  for  instance  will  not  recognize  the  defense 
of  fellow-servant  if  they  can  help  it  because  they 
consider  it  a  technical  defense  and  not  merito- 
rious. In  a  railroad  case  in  which  a  man  work- 
ing in  a  railroad  yard  fixing  the  track  is  run  down 
by  a  railroad  hand-car  pushed  by  his  fellow  em- 
ployees the  ordinary  layman  may  not  be  willing 
to  follow  the  defense  of  fellow-servant  because 
he  does  not  think  it  right.  He  holds  that  the 
man  was  entirely  blameless,  that  he  was  working 


CLASSIFICATION  OF  JUROKS.      93 

for  the  company  and  was  run  down  by  the  serv- 
ants of  that  railroad  company  and  he  is  more 
inclined  to  the  doctrine  of  respondent  superior — 
the  doctrine  that  a  superior  is  responsible  for 
what  his  subordinate  does.  The  ordinary  lay- 
man will  very  frequently  throw  out  the  defense 
of  fellow-servant  and  allow  the  injured  man  to 
recover.  That  there  is  justification  for  this 
view,  especially  in  railroad  matters,  is  seen  in 
various  States  which  have  deemed  this  defense 
oppressive  and  enacted  statutes  that  a  railroad 
man  who  has  been  injured  may  recover  from  a 
company  although  the  injury  was  inflicted  by  a 
fellow-servant.  In  defending  a  case  like  that  the 
jurors  must  be  gone  over  carefully  to  see 
whether  they  will  take  the  law  from  the  court, 
whether  they  really  understand  that  although 
they  have  their  own  opinions  as  men  yet  the  law 
is  a  complicated  science  and  they  must  listen  to 
the  court  and  obey  the  law  as  given  them  by 
the  court.  Sometimes  a  juror  on  close  examina- 
tion will  adhere  to  his  own  view  of  right  and 
wrong  and  very  reluctantly,  if  at  all,  admit  that 
he  will  be  guided  or  controlled  by  the  instructions 
of  the  court.  Such  a  juror  must  be  rejected 
though  the  court  may  not  admit  the  challenge 
for  cause  because  the  juror  may  finally  grudg- 
ingly say  that  he  will  take  the  law  from  the 
court,  but  the  examining  lawyer  should  know 


94  TRIAL  TACTICS. 

that  "a  man  convinced  against  his  will  is  of  the 
same  opinion  still." 

Jurors  must  not  be  allowed  to  imagine  that 
they  are  suspected  of  dishonesty  or  ignorance  or 
anything  of  the  sort  lest  they  become  offended, 
but  they  must  be  diplomatically  examined  in  re- 
gard to  these  various  possible  opinions. 

In  many  jurors  will  be  found  a  profound 
prejudice  against  corporations  as  such.  They 
are  something  outside  the  juror's  mental  grasp 
and  consequently  objects  of  deep  distrust.  Such 
jurors  have  a  vague  idea,  derived  largely  from 
the  newspaper  cartoonist's  conceptions  that  all 
corporations  are  grasping  and  oppressive  and 
hence  they  are  antagonistic  to  them  on  general 
principles.  When  a  corporation  is  being  de- 
fended the  jurors  must  be  carefully  examined 
with  regard  to  this  prejudice  and  must  be  chal- 
leged  off  for  cause  wherever  possible  rather  than 
by  peremptories.  The  peremptories  must  be 
saved  so  long  as  it  is  safe  because  if  they  are 
exhausted  unnecessarily  they  will  not  be  avail- 
able when  needed. 

There  are  a  number  of  other  important  eco- 
nomic questions  that  figure  greatly  in  court, 
for  instance  the  labor  question,  involving  union 
and  non-union  men:  jurors  will  be  encountered 
who  have  fixed  ideas  on  the  subject  which  noth- 
ing can  alter.  Political  questions  of  course  in- 


CLASSIFICATION  OF  JUEOKS.      95 

fluence  a  jury,  especially  if  the  litigation  has  a 
political  aspect,  for  instance  if  a  newspaper  is 
sued  for  libel.  In  these  cases  the  jurors  are  in- 
clined to  find  for  the  paper  if  they  get  a  chance 
because  jurors  are  generally  a  little  afraid  of  the 
influence  of  the  newspapers. 

In  criminal  law  one  of  the  most  important  con- 
siderations in  serious  cases  is  whether  the  juror 
has  any  conscientious  or  religious  scruples 
against  inflicting  the  death  penalty.  If  the  pros- 
ecuting attorney  wants  to  press  a  capital  case 
and  expects  to  obtain  a  sentence  of  death,  it  is 
very  important  for  him  to  probe  on  that  ques- 
tion because  a  certain  percentage  of  men  have 
convictions  against  capital  punishment  and  if 
they  are  on  a  jury  they  will  not  vote  for  a  con- 
viction of  murder  in  the  first  degree  if  it  is  a 
capital  crime  in  that  jurisdiction.  They  would 
convict  of  the  next  inferior  crime  but  they  never 
would  vote  for  hanging  a  man  because  they  be- 
lieve that  it  is  not  the  province  of  humanity  to 
take  human  life.  Of  course  such  men  could  be 
challenged  off  the  jury  for  cause.  If  the  prose- 
cutor does  his  duty  he  will  probe  the  jurors  to 
learn  their  views  on  that  question. 

The  jurors  must  be  examined  in  regard  to 
their  various  moral  beliefs.  There  is  an  anar- 
chistic creed  for  instance  whose  believers  do  not 
deem  themselves  bound  by  their  oath  as  a  juror 


96  TRIAL  TACTICS. 

or  bound  by  the  instructions  of  the  court.  In  a 
case  involving  strong  sympathy  such  a  man 
would  be  a  very  good  juror  for  the  side  on  which 
the  sympathies  lie  but  he  would  be  a  very  poor 
juror  for  the  side  whose  right  is  based  on  the 
technical  law  of  statutes  and  precedents,  be- 
cause he  would  ignore  all  of  that  very  readily. 

There  are  various  statutes  relating  to  the 
qualifications  of  the  jurors  that  should  be  well 
learned  because  they  may  be  useful  when  it  is  de- 
sirable to  get  rid  of  a  juror  if  there  is  no  other 
cause  and  it  is  not  advisable  to  exhaust  the  per- 
emptory challenges.  Age  is  one  of  the  statutory 
grounds  of  challenge  that  may  happen  to  be  ap- 
plicable. After  a  certain  age  men  cannot  serve 
as  jurors.  In  some  States  a  juror  may  be  chal- 
lenged if  he  is  not  a  freeholder.  In  some  States 
they  must  be  householders  and  have  a  family. 
They  must  not  be  aliens,  and  must  be  able  to 
read  and  write.  In  some  jurisdictions  they 
must  not  have  served  on  the  jury  within  one  year 
or  within  two  years ;  this  is  in  order  to  prevent 
having  professional  jurors  who  hang  around  the 
court  house  in  hopes  of  getting  on  the  jury. 
Other  statutes  in  other  places  provide  that  they 
must  be  voters,  that  they  must  be  tax  payers, 
that  they  must  understand  the  language,  that 
they  must  not  be  parties  to  another  suit  in  the 
same  term  of  court.  The  latter  is  an  important 


CLASSIFICATION  OF  JURORS.      97 

provision  which  should  be  ascertained  as  a  mat- 
ter of  peremptory  challenge  if  necessary,  be- 
cause they  might  wish  to  establish  in  their  own 
suit  the  very  thing  that  they  would  try  to  bring 
about  if  they  sat  as  jurors. 

In  some  places  jurors  must  not  be  members 
of  a  corporation.  It  does  not  happen  so  often 
in  large  cities  but  in  smaller  jurisdictions  some 
person  may  be  encountered  who  is  indirectly  in- 
terested against  a  litigant  as  a  member  of  an  as- 
sociation. It  constantly  recurs  for  instance  in 
some  States  where  they  have  a  prohibitory  liquor 
law  or  local  option  law  that  people  form  as- 
sociations to  suppress  the  sale  of  intoxicating  li- 
quors and  when  litigation  results  some  of  these 
very  people  are  chosen  on  the  jury.  If  that  is 
not  ground  for  challenge  for  cause  it  would  be 
wise  to  make  a  peremptory  challenge. 

In  some  frontier  States  there  are  still  associa- 
tions formed  among  farmers  to  prevent  horse 
stealing  and  a  horse  thief  on  trial  before  a  jury 
of  members  of  that  association  would  fare  ill. 

If  a  juror  in  a  case  against  a  city  happened 
to  be  a  very  heavy  tax  payer  it  might  be  a  reason 
for  challenging  peremptorily  because  though  one 
verdict  would  not  affect  him  very  much  he  might 
think  that  indirectly  and  ultimately  it  would 
affect  him  by  being  a  precedent  for  other  cases. 

So  various  circumstances  then  with  reference 


98  TRIAL  TACTICS. 

to  the  jurors  must  be  borne  in  mind  because 
they  may  affect  the  litigants  or  their  attorneys ; 
the  relations  of  landlord  and  tenant,  of  princi- 
pal and  agent,  employer  and  employee,  or  part- 
ners must  be  considered;  the  interests  of  stock- 
holders, of  men  engaged  in  lines  of  business  sim- 
ilar to  those  involved,  of  keepers  of  public  re- 
sorts, might  influence  their  decisions.  In  a  suit 
against  a  city  a  city  official  would  make  a  poor 
juror  because  directly  or  indirectly  he  might  feel 
it  to  his  advantage  to  hold  out  for  the  city. 

Opinions  on  the  questions  of  sanity  and  in- 
sanity are  important  ones  on  which  to  probe  the 
jury  where  the  case  may  involve  the  defense  of 
insanity  or  a  kindred  morbid  mental  state,  hys- 
teria or  nervous  depression. 

Some  jurors  will  state  in  advance  that  they 
would  not  convict  a  man  on  circumstantial  evi- 
dence though  criminal  cases  as  a  rule  depend  al- 
most entirely  or  to  a  very  great  extent  on  this 
kind  of  evidence.  It  happens  at  times  that  a 
principal  will  turn  State's  evidence  but  the  ac- 
cused does  not  as  a  general  thing  surround  him- 
self with  witnesses  in  order  that  they  may  see 
him  kill  somebody  and  circumstance  is  the  only 
kind  of  evidence  obtainable. 

The  following  account  of  the  notorious  Luet- 
gert  case  in  1897,  in  which  Luetgert  was  ac- 
cused of  murdering  his  wife  and  boiling  up  the 


CLASSIFICATION  OF  JURORS.     99 

remains  to  dispose  of  them  is  taken  from  a  news- 
paper clipping  of  that  date. 

"With  two  exceptions  all  the  challenges  for 
cause  yesterday  were  on  account  of  previously 
formed  opinions  which  the  venire  men  felt  they 
could  not  put  out  of  their  minds.  One  venire 
man  was  prejudiced  against  the  police  whose 
testimony  he  believed  was  like  butter,  and 
another,  a  fashionably  dressed  real  estate  man 
whom  both  sides  tried  hard  to  keep,  said  he  had 
strong  prejudice  against  circumstantial  evi- 
dence." The  prosecution  in  that  case  was  en- 
tirely dependent  upon  circumstantial  evidence 
so  if  this  man  had  a  strong  prejudice  against  cir- 
cumstantial evidence,  he  necessarily  would  stand 
out  for  an  acquittal. 

Many  jurors  have  not  much  confidence  in  the 
police  and  the  prosecution  must  challenge  such 
jurors  off  because  the  prosecution  is  so  often 
dependent  upon  the  evidence  of  the  police.  It  is 
stated  on  good  authority  that  some  city  attorneys 
have  a  rule  never  to  call  a  policeman  as  a  wit- 
ness. They  feel  that  some  of  the  jurors  would 
not  believe  policemen,  thinking  they  may  have 
been  sent  there  to  tell  a  story  on  behalf  of  the 
city ;  and  if  jurors  are  dissatisfied  with  one  wit- 
ness they  are  apt  to  be  dissatisfied  with  the  whole 
prosecution  or  defense.  If  the  jury  gets  an  idea 
that  there  is  a  hired  witness  on  one  side  they  get 


100  TRIAL  TACTICS. 

the  impression  that  the  whole  side  is  crooked. 
In  the  same  Luetgert  case  a  man  was  chal- 
lenged because  he  would  not  believe  a  policeman 
on  oath.  Another  man  was  challenged  because 
he  was  supposed  to  be  a  member  of  the  A.  P.  A., 
which  if  it  ever  really  existed  was  supposed  to 
be  an  organization  of  people  who  feared  the 
Catholic  influence  in  this  country — the.  Ameri- 
can Protective  Association — to  protect  the  Amer- 
ican people  against  the  encroachments  of  the 
Catholics.  If  this  man  admitted  that  he  was  a 
member  of  the  A.  P.  A.  and  was  on  the  jury,  he 
would  of  course  have  a  very  strong  prejudice 
against  every  witness  who  happened  to  be  a 
Catholic,  and  his  tendency  would  be  to  refuse  to 
believe  any  Catholic  witness.  Another  juror 
was  thrown  out  because  he  said  he  was  a  friend 
of  Inspector  Schaack.  Inspector  Schaack  was 
the  police  officer  who  aided  the  prosecution  in 
preparing  the  case.  On  the  other  hand  three 
were  rejected  because  they  were  Catholics.  To 
quote  further  from  the  newspaper  clipping,  "One 
was  a  bookkeeper  who  convinced  Judge  Gary 
and  the  State  after  hours  of  argument  that  he 
would  make  a  fair  minded  juror  and  was  per- 
emptorily challenged  by  the  defense."  In  his 
examination  it  was  probably  revealed  that  he 
had  an  opinion  on  the  case  of  which  the  defense 
was  afraid  because  in  a  shocking  offense  of  that 


CLASSIFICATION  OF  JURORS.    101 

kind  the  natural  inference  is  that  the  opinion  is 
against  the  defendant.  He  could  not  have  a 
prejudice  in  favor  of  the  defendant  because  he 
knew  nothing  of  him,  and  hence  if  he  had  an 
opinion  it  would  be  against  the  defendant.  Af- 
ter hours  of  argument  he  persuaded  Judge 
Gary  that  he  would  yield  to  the  court's  instruc- 
tions but  no  doubt  he  came  to  that  so  reluctantly 
that  the  defense  challenged  him,  being  still 
afraid  of  him. 

After  there  is  an  acceptable  jury  in  the  box  it 
is  well  to  take  some  reasonable  precaution — as- 
suming the  case  to  be  of  great  importance — to 
see  that  the  jury  is  not  tampered  with.  It  is  a 
matter  for  regret  that  there  is  much  endeavor  in 
some  communities  to  bribe  jurors  and  it  behooves 
the  careful  practitioner  to  be  on  his  guard.  It 
will  be  found  for  instance  in  very  important 
cases  that  the  State's  Attorney  has  caused  the 
jurors  to  be  watched  most  assiduously  from  the 
moment  they  are  examined  in  the  court  room  un- 
til the  verdict  comes  in.  The  jurors  may  not 
know  that  they  are  being  watched ;  possibly  not 
even  the  State's  Attorney's  own  assistants  are  in 
his  confidence  in  the  matter ;  but  the  State 's  At- 
torney and  his  detectives  know,  and  at  times  it  is 
a  very  wise  precaution. 

Anything  that  may  tend  to  influence  the  jury 
must  be  under  observation,  for  instance  news- 


102  TRIAL  TACTICS. 

paper  accounts  where  the  newspapers  are  read 
by  the  jurors.  Care  must  be  taken  to  see  that 
no  improper  influence  comes  to  them  in  that 
way.  The  courts  have  at  times  set  aside  verdicts 
where  it  was  shown  that  the  jurors,  while  in  at- 
tendance on  the  trial  read  sensational  accounts 
of  the  case  in  newspapers.  The  jury  should  not 
be  influenced  by  anything  of  that  kind  and  it 
is  altogether  likely  that  in  every  jurisdiction 
where  a  jury  was  found  to  be  influenced  by  sen- 
sational, inflammatory  narratives  in  the  newspa- 
pers it  would  be  the  lawyer's  duty  to  call  the  mat- 
ter to  the  attention  of  the  court  immediately  upon 
discovering  it.  If  the  matter  was  so  serious 
as  to  deserve  the  discharge  of  the  jury,  the  court, 
no  doubt,  might  discharge  the  jury  and  call  a 
new  one  and  take  pains  not  to  have  a  recurrence 
of  the  offense,  or  the  court  might  satisfy  itself 
with  ordering  the  jurors  not  to  be  influenced  by 
what  they  had  read,  although  the  efficacy  of  that 
is  questionable.  It  is  very  hard  for  a  juror,  al- 
though ordered  so  to  do,  to  cast  out  of  his  mind 
any  impression  which  has  once  lodged  there. 


CHAPTER  VII. 

PREPARATION  OF  THE  WITNESSES. 

THERE  is  some  work  to  do  in  the  office  be- 
fore the  case  is  called.  The  witnesses 
must  be  prepared  for  the  court  room  work, 
In  the  first  place  attention  must  be  given  to  see 
that  the  right  witnesses  are  at  hand  and  not  the 
wrong  ones ;  witnesses  who  throw  some  light  on 
the  case  instead  of  those  who  do  not.  Some- 
times there  is  a  superabundance  of  witnesses 
and  in  the  interest  of  economy  a  few  must  be  se- 
lected and  the  others  omitted.  Sometimes  wit- 
nesses leave  the  city  before  the  trial  or  are  hard 
to  reach,  so  the  choice  must  be  carefully  made. 
Frequently  upon  examination  witnesses  fail  to 
cover  the  point  that  they  have  been  relied  upon 
to  cover. 

A  client  for  instance,  accused  of  assault,  in- 
sists to  his  lawyer  that  it  was  a  case  of  self-de- 
fense, that  the  other  man  beat  him  first  and  the 
question  is  practically  who  struck  the  first  blow. 
The  client  comes  into  the  office  with  a  lot  of 
neighbors  and  friends  and  kinsmen  who  were 
present  at  the  altercation  and  who  all  say  that 
he  was  not  to  blame,  that  the  other  party  struck 

103 


104     •  TRIAL  TACTICS. 

first  and  with  one  accord  they  declare  that  they 
saw  the  altercation.  Five  or  six  are  picked  out 
and  the  others  are  allowed  to  go.  When  it  comes 
to  the  trial  these  witnesses  do  state  that  the  other 
party  struck  first  but  on  close  inquiry  it  is  found 
that  what  they  mean  by  this  is  that  so  far  as  they 
observed  the  other  party  struck  first.  This  is 
meaningless  because  they  did  not  observe  what 
happened  from  the  very  beginning.  This  is  one 
of  the  most  common  occurrences  to  be  found  in 
all  kinds  of  cases.  Witnesses  on  cross-examina- 
tion are  frequently  made  utterly  useless.  The 
witness  asked  "What  first  attracted  your  atten- 
tion to  this?"  answers  "I  heard  shouting  and 
turned  and  looked,"  or  "I  heard  angry  words 
just  as  I  came  to  the  street,  as  I  turned  the  cor- 
ner, ' '  thereby  admitting  that  he  had  not  seen  the 
beginning  of  the  affair.  Before  the  shouting 
something  must  have  happened  or  else  there 
would  have  been  no  shouting.  Before  the  blow 
that  he  saw  there  probably  was  another  blow 
which  he  did  not  see  and  on  cross-examination 
he  is  forced  to  admit  that  he  did  not  see  the  very 
beginning  and  hence  his  testimony  is  utterly  use- 
less. His  adversary  will  say  that  that  was  not 
the  first  blow  but  that  the  client  had  prior  thereto 
struck  the  adversary  .and  that  he  has  witnesses 
who  saw  the  affair  from  the  very  beginning. 
The  lawyer  may  have  had  witnesses,  who  if 


PREPARATION  OF  WITNESSES.  105 

carefully  examined  would  have  disclosed  that 
they  saw  the  very  beginning,  yet  by  his  inad- 
vertence or  his  negligence  he  failed  to  bring 
those  witnesses  to  court  and  the  witnesses  who 
did  come  were  not  able  to  support  their  side  of 
the  controversy. 

So  all  the  theory  of  the  testimony  should  be 
gone  over  in  advance  to  see  that  every  proposi- 
tion involved  in  the  case  is  covered  by  the  wit- 
nesses whom  he  has,  assuming  of  course  that  he 
has  witnesses  on  the  proposition.  Of  course 
there  will  be  propositions  on  which  the  client  is 
in  the  wrong  altogether  and  then  the  honorable 
thing  to  do  is  to  try  to  get  the  matter  adjusted  or 
to  get  it  settled,  or  in  a  criminal  case  to  try  to 
get  the  client  off  easily.  But  where  he  has  the 
material  for  success  his  clear  duty  is  to  pick  out 
the  right  material  and  not  to  ignore  it. 

In  preparing  a  case  a  client  will  frequently  say 
upon  a  certain  point,  "Oh,  we  do  not  need  any 
witness  on  that.  They  won't  contradict  that," 
but  that  is  a  very  dangerous  suggestion  to  fol- 
low. They  may  not  be  called  upon  to  deny  it.  It 
may  first  have  to  be  established.  The  other  side 
should  never  be  depended  upon  to  prove  a  state- 
ment because,  when  called  upon  as  a  witness,  in 
the  first  place  they  testify  grudgingly  and  with 
many  explanations  which  probably  weaken  and 
ruin  the  proposition;  and  secondly,  since  their 


106  TEIAL  TACTICS. 

opponent  has  made  them  his  witness,  to  that  ex- 
tent their  character  is  not  allowed  to  be  im- 
peached. If  one  side  calls  the  other  side  as  wit- 
ness they  cannot  afterwards  impeach  him.  In 
some  jurisdictions  it  may  be  shown  by  other 
witnesses  that  he  has  made  a  misstatement  of 
some  fact  or  facts,  but  in  no  jurisdiction  is  it  al- 
lowed to  impeach  his  character  as  such.  The  re- 
sult is  that  when  forced  on  the  stand  as  a  witness  . 
for  his  adversary  he  is  given  an  air  of  credibil- 
ity, and  when  later  he  appears  as  his  own  wit- 
ness on  his  side  of  the  case,  the  rest  of  his  testi- 
mony comes  to  the  jury  under  the  sanction  of  his 
credibility  and  he  is  not  allowed  to  be  impeached 
as  a  man  not  to  be  believed  under  oath.  So  prac- 
titioners should  not  put  themselves  in  that  posi- 
tion unless  it  is  absolutely  unavoidable.  There 
are  cases  possibly  where  it  is  necessary  to  call 
the  other  side  as  a  witness  by  force  of  law,  and 
under  those  circumstances  he  is  not  said  to  be  a 
witness  for  the  side  that  calls  him,  but  he  is  rec- 
ognized as  a  hostile  witness  and  it  is  barely  pos- 
sible that  when  he  then  takes  the  stand  for  his 
own  side  he  may  still  be  treated  as  a  hostile  wit- 
ness and  impeached  upon  general  lines. 

In  the  course  of  preparation  it  should  be 
borne  in  mind  that  the  witnesses  may  never  have 
been  in  a  court  and  they  should  be  cautioned  to 
tell  the  plain  simple  facts  of  the  case,  to  tell 


PREPARATION  OF  WITNESSES.    107 

them  quietly  and  calmly,  and  so  far  as  they  can, 
disinterestedly.  They  should  be  dispassionate 
because  they  are  to  tell  the  truth  for  the  one  side 
as  well  as  for  the  other.  They  are  not  called 
upon  to  take  sides  and  if  they  allow  themselves 
to  take  sides  they  impair  the  force  of  their  testi- 
mony by  their  demeanor.  A  great  many  wit- 
nesses think  it  is  a  part  of  their  duty  to  come  into 
the  court  room  and  be  as  disagreeable  as  they 
can,  even  spiteful  toward  the  other  side,  toward 
the  litigant  and  the  witnesses  and  everybody  else 
on  the  other  side.  Such  a  witness  would  better 
be  kept  out  of  the  court  room,  for  no  matter  how 
truthful  he  may  be  the  effect  is  altogether  bad 
for  his  side  of  the  case. 

Witnesses  must  also  be  prepared  to  give  the 
ultimate  facts  in  the  case  and  not  their  conclu- 
sions from  the  facts  because  the  court  will  rule 
out  a  conclusion,  will  not  allow  the  question  to 
be  put  which  calls  for  a  conclusion  and  will  not 
allow  a  conclusion  to  stand  which  is  given  by 
way  of  answer.  The  witness  not  accustomed  to 
these  technicalities  is  at  a  loss  to  know  how  to 
proceed  and  very  frequently  is  unable  to  proceed 
at  all.  He  blunders  a  little  and  then  is  ordered 
to  step  down  from  the  stand,  when  perhaps  his 
testimony  was  very  vital  in  establishing  that  side 
of  the  controversy.  Parties  in  cases  have  some- 
times been  forced  to  a  non-suit,  although  they 


108  TRIAL  TACTICS. 

had  the  material  at  hand  to  win  their  side  of  the 
case  honestly  and  fairly,  through  the  inability  of 
their  witnesses  to  give  a  technical  or  legal  ex- 
pression to  their  views. 

What  is  conclusion  and  what  is  a  statement 
of  fact  is  not  always  easy  to  determine.  A  very 
skilled  intellect  is  sometimes  required  to  deter- 
mine that  and  consequently  it  is  the  more  im- 
portant to  go  over  the  ground  in  advance  with 
witnesses.  In  the  very  common  questions  of 
sanity  or  insanity,  health  or  sickness,  drunken- 
ness or  sobriety,  of  speed  of  trains  or  slowness 
of  trains,  the  matter  varies  in  various  jurisdic- 
tions. In  some,  questions  are  allowed  as  to  the 
conditions  of  the  party  or  of  the  matter  ob- 
served; a  witness  may  be  asked  to  state  the 
manner  in  which  the  train  was  going  and  the 
witness  may  answer  that  it  was  going  fast  or 
slow.  In  other  jurisdictions  that  is  held  to  be  a 
conclusion  and  erroneous,  because  they  hold  that 
the  witness  should  give  only  what  the  witness 
observed  and  the  jury  will  tell  whether  that  was 
fast  or  slow.  In  some  jurisdictions  also  the  wit- 
ness may  be  asked  what  was  the  condition  of  the 
party  before  the  accident  and  after  the  accident 
but  even  then  it  is  a  little  difficult  to  put  the  mat- 
ter. The  witnesses  must  be  made  to  understand 
that  they  are  not  allowed  simply  to  answer  that 
the  party  was  well  before  the  accident  and  sick 


PREPARATION  OF  WITNESSES.    109 

after  the  accident,  because  that  is  a  conclusion — 
or  to  state  that  he  looked  well  before  the  accident 
and  sick  after  the  accident — that  is  a  conclu- 
sion. The  witness  will  have  to  state  the  details 
of  his  observation,  as  for  instance,  "Yes,  I  saw 
this  party  the  day  before  she  was  hurt.  I  re- 
call the  fact  that  she  was  brought  home  in  the 
ambulance.  Prior  to  that  time  I  had  seen  her 
very  often  and  she  was  a  healthy  looking 
woman."  Somebody  may  then  object  that 
"healthy"  is  a  conclusion,  and  in  some  States 
it  is  held  to  be  a  conclusion,  so  the  witness  will 
be  asked  for  more  details.  "Well,  she  walked 
erect  and  straight  and  sprightly  and  her  eyes 
were  bright  and  her  complexion  was  clear,  even 
blooming  and  reddish,  and  her  general  manner 
was  of  activity,  and  her  weight  was  substantial, " 
and  so  on.  All  those  details  are  gone  into  in 
some  jurisdictions.  "What  did  you  observe 
next?"  "After  this  occurrence  when  she  was 
brought  home  in  the  ambulance  I  did  not  see 
her  for  a  while."  The  other  witnesses  have  said 
that  during  that  period  she  was  in  bed.  "Well, 
what  then?"  "Well,  about  a  month  or  two 
after  that  I  saw  her  for  the  first  time."  "What 
did  you  observe?"  "She  looked  shrunken,  her 
complexion  was  pallid  and  her  eyes  were  dim  and 
she  walked  in  a  tottering  manner, ' '  and  so  on. 
Those  are  facts  as  distinguished  from  conclu- 


110  TRIAL  TACTICS. 

sions.  In  some  jurisdictions  such  detail  of  fact 
is  held  to.  Of  course  every  thing  in  this  world 
is  to  some  extent  a  conclusion  since  a  conclusion 
is  a  deduction  made  from  a  group  of  facts  back 
of  it.  But  after  all  some  groups  can  themselves 
be  solved  by  a  single  statement.  To  take  a  very 
elementary  illustration,  a  witness  would  be  al- 
lowed to  say  that  he  saw  his  friend  walk  across 
the  room,  though  technically  that  is  a  conclu- 
sion. He  might  go  into  detail  and  say, ' '  I  looked 
at  him  and  he  stood  at  the  north  end  of  the  room ; 
I  then  saw  his  right  foot  rise  in  the  air  and 
move  forward  about  18  or  20  inches  and  then 
strike  on  the  floor,  and  then  his  left  foot  lift  and 
move  forward  of  the  right  foot  about  18  inches 
and  then  it  went  down  on  the  floor."  These  are 
the  facts  and  in  that  way  the  progression  is  de- 
scribed from  one  end  of  the  room  to  the  other, 
but  practically  they  are  all  included  in  the  state- 
ment that  the  man  walked  across  the  room.  To 
this  extent  statements  of  facts  are  not  considered 
conclusions,  though  they  might  be  conclusions 
because  the  man  might  not  have  walked  across 
the  room  at  all.  There  might  have  been  a  rope 
extended  across  the  room  and  a  derrick  pulling 
him  across  the  room.  But  where  a  group  of 
facts  has  thus  been  stated  in  the  plain  accepted 
way  the  error  in  the  conclusion,  if  there  was  one, 
may  be  shown  by  cross-examination.  If  the  man 


PBEPAKATION  OF  WITNESSES.    Ill 

possibly  did  not  walk  across  the  floor  the  other 
party  may  ask,  "Did  you  not  see  that  there  was 
a  rope  about  his  shoulders  and  that  the  rope  ex- 
tended up  in  the  air  ?  "  * i  Yes,  I  observed  that. ' ' 
"Then  didn't  you  see  that  there  was  a  man  at 
the  other  end  pulling  on  it  ?  "  "  Yes,  I  saw  that. ' ' 
So  he  is  broken  down  on  cross-examination. 

The  Supreme  Court  of  Illinois  has  held  that 
a  witness  may  testify  that  a  train  was  moving 
very  fast,  but  a  trial  court  has  refused  to  allow 
a  witness  to  say  that  because  he  believed  it  to  be 
a  conclusion.  So  if  a  witness  has  told  his  lawyer 
in  his  office  that  the  train  was  moving  fast,  which 
is  an  important  point  in  the  case,  he  should  not 
be  allowed  to  go  at  that,  because,  having  no  ex- 
perience in  the  court  room  and  excited  from  the 
novelty  of  the  situation  he  may  break  down  on 
cross-examination  and  his  evidence  may  be 
stricken  out.  If  a  witness  says  that  the  train 
was  going  fast  it  is  well  to  find  out  how  he 
knows  that.  Then  on  study  and  reflection  in  the 
lawyer's  office  the  scene  will  come  back  to  him 
because  he  has  time  to  think  and  is  not  con- 
fused; whereas  in  the  witness  chair  with  the 
novel  surroundings  and  the  people  looking  at 
him  he  may  be  at  a  loss.  The  judge  may  be  per- 
emptory and  while  he  hesitates,  confused,  call 
another  witness.  But  the  witness  really  remem- 
bers that  the  train  was  going  fast  because  he  was 


112  TRIAL  TACTICS. 

walking  along  the  sidewalk,  observing  the  mat- 
ter. He  himself  was  in  a  hurry  and  he  observed 
that  the  train  had  gone  three  blocks  while  he 
walked  half  a  block.  Those  things  attracted  his 
attention  and  with  time  for  consideration  in  the 
lawyer's  office  he  will  recall  the  circumstances. 
Or  there  may  have  been  another  basis  of  com- 
parison. He  may  be  accustomed  to  riding  a  bi- 
cycle and  it  may  have  left  an  impression  at  that 
instant  that  the  train  moved  past  him  faster  than 
anything  he  had  ever  observed  before,  either  ve- 
hicles or  animals. 

Few  things,  again,  are  so  hard  to  recall  defi- 
nitely from  memory  as  matters  of  time,  so  where 
the  question  of  time  is  an  important  factor 
search  must  be  made  in  the  preparation  of  a  case 
for  corroboration  or  correction  of  a  witness. 
The  human  memory  is  utterly  incapable  of  accu- 
rately grasping  in  the  abstract  matters  of  time. 
Things  that  happened  thirty  years  ago  may  ap- 
pear quite  as  vivid  as  those  that  happened 
two  years  ago.  No  witness  can  tell  offhand 
from  memory  even  the  approximate  time  at 
which  an  occurrence  took  place.  The  human 
memory  in  the  matter  of  dates  seems  to  look 
down  a  vista,  as  the  eye  looks  down  a  lane  be- 
tween rows  of  trees.  The  first  ten,  twenty  or 
thirty  trees  are  quite  distinct,  but  beyond  that 
they  all  appear  to  grow  together  and  become 


PBEPARATION  OF  WITNESSES.    113 

indistinguishable.  So  where  the  fixing  of  a  date 
is  an  important  point  tangible  corroborative  ev- 
idence should  be  found  to  aid  the  memory. 

In  any  ultimate  statement  of  a  particular  fact 
the  lawyer  should  see  that  his  party  is  prepared 
properly  to  stand  cross-examination.  And  he 
must  find  out  whether  he  has  the  witness  who 
can  best  cover  the  proposition  or  whether  he 
must  hunt  about  and  find  other  witnesses. 

The  lawyer  must  also  ascertain  whether  the 
witnesses  are  telling  the  truth,  because  many  wit- 
nesses first  through  inadvertence  and  secondly 
through  partisanship  for  their  friend  will  tell 
things  which  are  not  true.  In  the  first  place 
they  are  not  telling  things  under  the  sanctity  of 
an  oath  and  they  fail  to  consider  that  in  the  court 
they  will  be.  Then  again  they  may  believe  the 
things  they  say.  Their  partisanship,  their  bias, 
has  influenced  their  intellect  or  observation  so 
that  they  honestly  believe  their  own  story,  but  a 
lawyer  can  see  that  it  is  not  true,  that  it  is  exag- 
gerated— possibly  purposely,  perhaps  uncon- 
sciously, and  he  must  quiet  them  down  and  get 
at  the  bottom  facts. 

Many  witnesses  turn  themselves  into  a  sort  of 
advocate,  believing  that  they  are  to  champion 
the  side  that  they  are  on,  either  in  the  lawyer's 
office  or  in  the  court  room.  They  think  that  they 
must  study  ways  to  give  the  answers  which 


114  TEIAL  TACTICS. 

are  the  most  favorable  in  their  view  to  the  side 
to  which  they  are  friendly.  That  idea  must  be 
removed.  They  must  be  made  to  understand 
that  all  that  is  wanted  is  the  bottom  facts,  that 
it  is  for  the  lawyer  to  determine  what  use  to 
make  of  them.  It  is  his  duty  to  prepare  the  case 
on  his  side  as  he  understands  it  and  present  it 
in  court.  The  witness  must  not  be  allowed  to 
impose  on  his  lawyer,  to  tell  an  exaggerated  or 
perverted  story  which  is  relied  upon  and  which 
later  collapses  in  court  and  undermines  that  side 
of  the  case.  His  story  should  be  exploded  in 
the  lawyer's  own  office  if  it  is  going  to  be  ex- 
ploded anywhere. 

It  is  perhaps  most  difficult  to  elicit  a  perfectly 
honest  statement  from  a  witness  on  questions  of 
opinion,  because  the  evidence  differs  only  so 
far  as  the  parties  themselves  feel  an  interest  in 
the  case.  If  a  client  has  an  interest  to  prove 
that  a  certain  property  is  very  valuable  the  cli- 
ent's witnesses,  being  friendly  to  him,  will  put 
an  immense  value  on  the  property — not  dis- 
honestly but  thinking  to  do  him  a  kindness  and 
because  they  wish  it  to  be  that  way.  The  wish 
is  father  to  the  thought.  On  the  other  hand,  if 
the  wish  is  to  have  the  property  of  little  value 
they  will  state  that  the  property  is  worthless. 
A  little  illustration  of  that  recently  cost  a  party 
nearly  a  hundred  dollars.  The  question  was 


PREPARATION  OF  WITNESSES.    115 

upon  the  conversion  of  some  chattels;  the  con- 
version was  practically  proved  and  the  ques- 
tion was  how  much  the  property  was  worth, 
one  party  contending  that  the  property  was 
worth  $200  and  the  other  party  contending  that 
the  property  was  worth  $100.  The  party  that 
was  contending  for  the  low  value  so  exaggerated 
as  to  testify  that  the  property  had  no  value  at 
all,  was  absolutely  worthless.  Later  it  was  es- 
tablished beyond  question  that  it  had  a  value  of 
at  least  $120.  The  result  was  that  the  jury  ig- 
nored all  that  line  of  testimony  and  gave  the 
highest  value.  The  party  could  have  gotten  off 
by  paying  $120  if  he  had  told  the  plain  truth; 
but  the  jury  was  dissatisfied  with  his  testimony 
altogether,  threw  it  all  out,  and  took  the  val- 
uation of  the  other  side. 

So  in  preparing  the  witness  and  clearing  his 
narrative  the  correctness  of  that  narrative  must 
be  tested  in  the  lawyer's  office.  The  witness 
may  insist  that  a  certain  demand  for  the  pay- 
ment of  a  note  was  made  on  a  certain  day  and  it 
may  be  important  to  know  just  the  date.  It 
may  occur  to  the  lawyer  that  the  witness'  state- 
ment will  not  stand  the  test  in  court;  that  pur- 
posely or  erroneously  he  is  giving  a  wrong  date. 
He  has  heard  from  some  other  witnesses,  or 
from  what  he  knows  of  the  opposing  side,  that 
that  cannot  be  the  date.  So  he  must  have  the 


116  TRIAL  TACTICS. 

witness  search  his  memory,  search  for  the  cor- 
roborative facts ;  produce  the  correspondence  or 
the  book  entries  until  he  finds  the  right  date  and 
finds  it  fundamentally  established,  as  he  some- 
times may,  by  indisputable  evidence  of  book  en- 
tries, letters  written  or  received,  or  other  docu- 
ments, perhaps  records  in  the  recorder's  office — 
mortgages  made  or  released.  The  matter  must 
be  set  together  absolutely  right  so  that  it  cannot 
be  defeated  by  any  counter  evidence  or  any  con- 
tradiction. A  searching  inquiry  may  show  fail- 
ure to  make  timely  or  any  demand;  in  which 
event  an  altogether  different  topic  presents  it- 
self, and  if  it  can  be  established  the  suit  must 
proceed  on  allegation  and  proof  of  waiver. 

At  times  in  this  probing  and  searching  process 
if  a  lawyer  is  still  dissatisfied,  thinks  that  the 
witness  has  not  got  the  facts  exactly  right  and 
that  he  will  not  stand  a  cross-examination  suc- 
cessfully he  must  inquire  if  there  are  not  other 
witnesses  and  keep  inquiring  until  everybody 
that  could  possibly  know  anything  about  it  is 
presented  to  him  and  a  thorough  examination 
made.  He  may  find  that  his  client  has  brought 
the  feeblest  and 'least  important  witnesses  and 
has  omitted  to  point  out  to  him  the  strongest, 
clearest  and  most  important  witnesses. 

It  is  a  singular  thing  that  people  will  lie  when 
it  would  be  to  their  interest  to  tell  the  truth,  but 


PREPARATION  OF  WITNESSES.    117 

quite  a  large  percentage  of  humanity  is  so  con- 
stituted. The  first  impulse  of  a  witness  and  of 
a  litigant  usually  is  to  contradict  unless  he  is  re- 
peatedly warned  that  all  that  is  wanted  of  him 
is  an  honest  statement  of  the  facts;  that  the 
lawyer  will  deal  with  the  case  himself.  If  the 
opponent  for  instance  testifies  that  he  saw  the 
client  Saturday  afternoon  at  the  First  National 
Bank  the  client  will  immediately  state  that  this 
is  not  so  and  if  he  is  not  headed  off  will  swear 
in  his  zeal  that  the  opponent  never  saw  him  at 
any  place  at  any  time,  while  it  may  be  one  of  the 
strongest  points  in  his  case  to  prove  that  that 
very  thing  is  true — that  the  opponent  did  see 
the  client  Saturday  afternoon  at  the  First  Na- 
tional Bank.  Sometimes  it  is  to  be  accounted 
for  by  a  misunderstanding,  sometimes  by  the 
surroundings.  As  has  been  suggested  before, 
the  situation  is  novel  and  the  witnesses  may  not 
intend  to  tell  lies  but  they  do  not  understand 
the  bearing  of  the  matter  and  they  will  tell  that 
which  is  either  a  lie  or  a  great  mistake.  It  is 
a  most  common  occurrence  for  instance  for  a 
witness  on  the  stand  to  insist  that  he  has  never 
spoken  to  a  human  being  about  the  occurrence 
when  it  is  common  knowledge  that  he  has  talked 
with  his  own  lawyer  about  it  or  with  his 
friend's  lawyer,  if  he  is  there  for  a  friend. 
Asked,  "How  could  you  say  such  things'?"  he 


118  TEIAL  TACTICS. 

will  answer,  "Oh,  well,  I  meant  that  I  did  not 
talk  with  anybody  else.  I  supposed  everybody 
knew  that  I  would  talk  to  the  lawyers."  That 
is  in  many  cases  the  explanation  of  his  misrep- 
resentation. 

Some  witnesses  do  not  intend  to  be  honest  and 
it  is  an  indication  of  their  dishonesty  when  they 
will  say  even  an  unimportant  thing  falsely. 
The  witness  who  will  testify  falsely  to  a  very 
unimportant  thing  discredits  his  whole  testi- 
mony and  in  discrediting  his  whole  testimony 
he  discredits  the  entire  case,  because  the  jury 
will  say  that  if  he  lies  in  one  particular  he 
has  lied  in  all  and  if  that  side  must  rely  upon 
a  lying  witness  doubtless  all  their  witnesses 
are  equal  liars.  So  a  single  blundering  wit- 
ness or  a  single  falsehood,  even  an  uninten- 
tional one,  by  mistakenly  giving  a  false  answer 
to  a  minor  question  may  injure  the  whole  case. 
It  at  least  gives  the  adversary  an  argument, 
whereas  without  it  the  adversary  might  have  no 
point  of  attack  at  all. 

In  the  preparation  of  the  case  in  the  office 
such  things  as  writings  must  also  be  carefully 
examined.  The  lawyer  should  not  take  any 
other  person's  statement  for  them;  should  not 
take  any  copy  or  allow  his  client  or  any  witness 
to  tell  him  that  there  is  a  certain  letter  which 
contains  certain  things,  or  that  there  is  a  certain 


PREPARATION  OF  WITNESSES.    119 

contract  with  certain  terms.  He  must  demand 
the  original,  have  it  brought  to  his  office  and  read 
it  for  himself.  He  will  probably  have  difficulty 
in  doing  this  but  he  will  have  still  more  difficulty 
if  he  does  not. 

A  certain  case  was  in  court  for  several  years 
with  three  sets  of  lawyers ;  when  the  case  came 
to  a  final  hearing  the  last  lawyer  examined  the 
original  instead  of  a  copy  and  won  the  case. 
The  case  had  been  going  for  ten  years  upon  a 
copy  of  an  abstract  of  title,  everybody  assuming 
that  the  copy  told  the  entire  truth.  But  upon 
the  final  submission  the  last  set  of  lawyers  in- 
sisted upon  examining  the  original  back  of  the 
copy  and  in  that  were  found  a  few  lines  which 
were  not  in  the  copy  and  which  turned  the  en- 
tire case. 

It  must  always  be  expected  that  the  adversary 
is  making  the  strongest  possible  move  and  the 
fact  that  a  lawyer  is  looking  at  a  copy  can  be 
no  indication  to  him  that  his  opponent  is  not 
looking  at  the  original.  If  he  finds  something 
in  the  original  that  is  not  in  the  copy  he  will 
use  it  or  not,  as  it  serves  his  advantage.  He  is 
not  there  to  furnish  ammunition  to  his  adver- 
sary. There  is  no  duty,  either  in  morals  or  in 
law  or  anywhere  else  for  him  to  do  so.  If  he 
should  expose  that  information  to  the  other  side 
he  would  be  subject  to  disbarment.  He  is  not 


120  TRIAL  TACTICS. 

there  for  that  purpose.  Each  man  looks  out  for 
his  own  side;  so  if  one  man  has  the  original  he 
will  use  it  if  it  is  for  his  interest,  and  he  will 
not  use  it  if  he  finds  it  is  not.  If  a  lawyer's 
clients  have  only  copies  and  not  originals  proper 
steps  should  be  taken  to  have  the  originals 
brought  into  court. 

Every  proposition  advanced  by  the  witnesses 
must  be  tested  in  the  lawyer's  office,  first  with 
reference  to  the  circumstances  which  are  known 
to  exist,  and  second  with  reference  to  the  state- 
ments made  by  other  witnesses  to  see  whether 
the  statements  made  by  this  witness,  compared 
with  those  made  by  the  others  are  reasonable  or 
unreasonable.  If  they  are  unreasonable  state- 
ments there  is  something  wrong.  Either  the 
witness  is  deceiving  himself  or  is  deceiving  his 
lawyer  or  a  prior  witness  is  deceiving  him.  He 
must  find  out  which  is  the  truth.  He  cannot 
bring  conflicting  witnesses  into  court  for  they 
will  ruin  his  case.  He  must  see,  if  possible, 
that  all  the  statements  of  things  claimed  by  the 
one  could  have  existed  in  view  of  the  statements 
made  by  the  other. 

What  may  be  deemed  weak  points  must  be 
found  out  in  advance.  For  instance  one  witness 
gives  an  account  of  an  occurrence  and  it  is 
learned  from  the  witness  that  he  is  brother  of 
the  client,  a  fact  that  is  not  self-evident  because 


PREPARATION  OF  WITNESSES.    121 

their  names  are  not  the  same.  The  client  is  a 
married  woman  and  the  witness  is  a  man  and 
hence  their  names  are  different,  although  they 
are  brother  and  sister.  Some  witnesses  deem  it 
wise  to  hide  that  relationship.  They  think  if  it 
appears  during  the  trial  that  they  are  closely  re- 
lated the  jury  will  think  their  testimony  biased ; 
will  think  the  witness  is  lying  to  help  along  or 
to  shield  his  sister.  All  the  facts  as  to  their 
relationship  should  be  obtained  and  candidly 
stated  in  the  witness  chair.  It  is  better  when 
the  witness  is  testifying  to  establish  in  a  quiet 
way  that  he  is  the  brother  of  the  client  than  it 
is  to  allow  the  cross-examiner  to  disclose  it  with 
the  effect  of  making  a  great  revelation.  "Ah! 
You  are  the  brother ! "  As  much  as  to  say,  '  *  Ah  I 
gentlemen  of  the  jury,  that  accounts  for  it  all." 
It  is  better  to  bring  out  the  fact  naturally  if  it 
does  exist. 

If  a  point  has  been  fairly  well  established  by 
one  or  two  plain-spoken,  well  appearing,  good, 
strong  witnesses,  especially  those  in  whom  the 
jury  has  confidence,  who  are  of  good  reputation 
in  the  community  and  entirely  disinterested  in 
the  controversy,  examination  on  the  matter 
should  be  confined  to  those  witnesses.  It  is  a 
mistake  to  accumulate  unnecessarily  a  great 
many  witnesses  on  one  point  because  some  of 
the  others,  through  lack  of  intelligence,  may  not 


122  TEIAL  TACTICS. 

stand  cross-examination  so  well  as  the  first  and 
may  weaken  the  case  all  along  the  line.  Espe- 
cially if  the  proposition  is  not  expected  to  be  the 
crucial  point  of  the  case  it  should  not  be  over- 
loaded with  witnesses  because  by  giving  it  un- 
due prominence  and  causing  the  jurors  to  think 
that  that  is  the  turning  point  in  the  case  they 
will  fail  to  be  impressed  afterwards  with  the  real 
point  of  the  case.  If  there  is  a  choice  of  wit- 
nesses those  should  be  accepted  who  are  most 
pleasing  to  the  jury.  Without  disparagement 
to  men  who  frequently  are  worthy,  it  is  advis- 
able for  instance  not  to  call  detectives  if  it  can 
possibly  be  helped  because  a  detective  does  not 
appeal  to  the  sympathies  of  a  jury.  The  jury 
have  an  idea  that  a  detective  is  hired  and  that 
he  will  testify  accordingly ;  that  he  will  be  eager 
to  win  for  his  side  of  the  case  and  at  all  events 
will  want  to  earn  his  fee  and  possibly  thus  en- 
sure future  employment.  Of  course  the  evi- 
dence of  detectives  is  sometimes  absolutely  in- 
dispensable and  if  it  cannot  be  avoided  there  are 
detectives  and  detectives,  just  as  there  are  peo- 
ple and  people  in  every  community.  There  are 
detective  agencies  with  a  reputation  in  every 
community;  men  of  upright  character  who  in- 
spire confidence  and  if  it  is  necessary  to  have 
them  at  all  those  should  be  obtained  who  inspire 
respect. 


PREPARATION  OF  WITNESSES.    123 

That  there  is  good  ground  sometimes  for  look- 
ing upon  detectives  with  suspicion  a  small  item 
taken  from  the  Chicago  Post  some  time  ago  will 
show. 

"DETECTIVES  GIVEN  A  SPUR." 

COLLERAN  POINTS  TO  THE  RECORDS,  AND  HlNTS 
AT  MORE  TELLING  WORK. 

Posted  in  a  conspicuous  place  in  the  squad- 
room  of  detective  headquarters  is  a  list  of  the 
records  of  the  detectives  during  the  month  of 
November.  Captain  Colleran  again  attended 
roll-call  to-day,  and  told  the  officers  what  they 
would  be  expected  to  do  if  they  did  not  wish  to 
be  transferred  from  the  Central  Station. 

The  record  gives  the  total  number  of  arrests, 
fugitives  returned,  and  total  amount  of  stolen 
property  recovered.  The  following  communica- 
tion was  read: 

"To  Officers  of  the  Detective  Bureau:— 

"Please  note  the  record  for  detectives  for 
November.  In  looking  it  over  you  will  see  that 
arrests  without  conviction  are  of  no  account  to 
this  office.  Criminal  arrests  are  what  we  are 
after.  It  behooves  some  of  you,  if  you  wish  a 
continuance  in  this  office,  to  wake  up  and  do 
public  duty.  That  is  what  we  are  here  for.  If 
not,  look  out  for  a  transfer. 

"LUKE  P.  COLLERAN, 
"Chief  of  Detectives.' ' 


124  TRIAL  TACTICS. 

That  is  an  indication  to  the  detective  that  he 
must  convict  his  man  and  if  the  jury  had  the 
information  that  this  notice  indicates — that  the 
detective  is  bound  to  produce  a  conviction  if 
possible — the  jury  would  naturally  think  the  de- 
tective was  ready  to  go  to  any  extreme  in  get- 
ting a  conviction,  even  to  the  extent  of  telling 
a  falsehood.  It  would  weaken  his  testimony 
greatly. 

The  witnesses  should  be  given  to  understand 
that  they  are  to  give  the  whole  truth  and  nothing 
but  the  truth,  but  not  more  than  the  truth,  be- 
cause that  may  be  injurious.  Unfortunately 
there  are  instances  where  their  misguided  zeal 
has  caused  them  to  make  exaggerated  statements 
that  bring  ridicule  upon  themselves  and  injure 
the  side  of  the  case  that  called  them.  There  is 
a  case  often  quoted  which  goes  something  like 
this:  A  woman  was  claiming  money  from  the 
estate  of  a  deceased  uncle,  alleging  that  the  un- 
cle had  promised  it  to  her  to  pay  for  her  serv- 
ices. She  could  not  testify  against  the  de- 
ceased, so  a  friend  of  hers  testified  but  did  not 
quite  cover  the  case,  because  the  Court  held  that 
under  the  circumstances  there  should  have  been 
an  express  promise,  not  merely  an  implication, 
and  in  the  course  of  the  arguments  the  Judge 
said,  "If  the  deceased  had  said  right  here,  in  the 
light  of  these  Missouri  cases,  that  he  would  pay, 


PREPARATION  OF  WITNESSES.    125 

it  might  be  different."  The  complainant's  law- 
yer insisted  that  that  had  been  covered  and  the 
Judge  said,  "Recall  your  witness."  She  had 
heard  all  the  talk  and  the  lawyer  said  to  her, 
"Did  you  entirely  cover  that  conversation  that 
you  told  us  about?"  "Well,  I  heard  that  uncle 
say,  '  And  if  in  the  light  of  these  Missouri  de- 
cisions you  have  done  this  work  I  will  pay 
you !'  :  There  may  have  been  and  probably  was 
some  talk  about  pay  but  the  witness  in  her  ex- 
cess of  zeal  exaggerated  and  spoiled  her  evi- 
dence. 

The  witness  should  be  given  to  understand 
that  only  the  facts  are  wanted,  the  truth  and  no 
more  and  no  less  and  in  the  plainest  manner. 
Either  A  and  B  happened  or  A  and  B  did  not 
happen;  but  a  witness  must  not  be  allowed  to 
say  "I  don't  remember,"  because  this  disinte- 
grates his  entire  testimony.  If  a  thing  hap- 
pened very  long  ago,  naturally  a  witness  cannot 
remember  every  detail  but  if  it  is  a  thing  of  re- 
cent occurrence  the  witness  either  knows  it  or 
does  not  know  it.  He  should  not  be  allowed  to 
put  off  his  lawyer  with  "I  don't  remember,"  or 
"It  is  so,  to  the  best  of  my  knowledge  and  be- 
lief," or  "So  far  as  I  can  recollect."  He  either 
knows  it  or  he  does  not  know  it;  it  either  hap- 
pened or  it  did  not  happen.  He  must  not  hesi- 


126  TRIAL  TACTICS. 

tate  about  any  one  point  because  this  simply 
weakens  his  testimony  on  other  points. 

In  the  case  of  a  witness  who  is  very  youthful, 
as  part  of  his  preparation  for  the  court  room  it 
must  be  ascertained  that  he  understands  the  na- 
ture of  an  oath  and  understands  what  he  is  going 
to  do  and  if  asked  in  court  by  the  judge  or  by 
the  lawyer,  as  to  the  nature  of  an  oath,  as  he  will 
be,  that  he  knows  what  it  all  means.  It  is  right 
and  proper  to  instruct  him  if  he  has  not  had  the 
instruction,  or  to  get  some  competent  person  to 
instruct  him,  his  parents  or  those  of  the  same 
religious  belief.  A  very  young  child  who  has 
never  had  his  mind  directed  to  such  things  at 
all,  coming  for  the  first  time  into  a  witness  chair 
in  the  court  room,  gazed  upon  by  a  great  many 
people  is  terrified  and  cannot  understand — un- 
less he  is  extremely  mature  intellectually — what 
is  going  on,  and  very  important  testimony  is 
sometimes  unnecessarily  lost,  simply  from  the 
embarrassment  of  the  witness. 


CHAPTER  VIII. 

PRESERVING  THE  EVIDENCE. 

THERE  are  various  ways  to  preserve  evi- 
dence and  bring  it  into  court.  One  of 
the  ways  is  by  taking  depositions.  Wit- 
nesses cannot  always  be  relied  upon  to  come  to 
court,  especially  if  they  live  at  a  distance.  So 
it  is  advisable  to  take  their  depositions  in  order 
that  if  they  do  not  come  the  deposition  will  be 
there  to  cover  the  point.  The  point  may  not  be 
a  disputed  one,  but  it  has  to  be  covered  because 
if  it  is  not  covered  there  is  a  link  missing  in  the 
chain  of  evidence  and  the  case  cannot  be  estab- 
lished at  all.  In  a  damage  case  for  injuries,  for 
instance,  it  must  be  proved  that  the  horse  and 
wagon  which  ran  over  the  plaintiff  belonged  to 
the  defendant.  After  it  is  proved  the  defendant 
will  not  contradict  it  but  still  it  must  be  proved 
in  order  to  establish  the  case  at  all,  Now  a 
point  like  that  may  be  covered  by  a  deposition, 
perhaps  the  deposition  of  the  driver  of  the  horse. 
He  may  have  gone  to  a  distant  state  and  may  not 
be  ^resent  but  his  deposition,  if  it  has  been 
taken,  may  show  that  i.he  horse  belonged  to  the 
defendant  and  establish  that  point. 

127 


128  TRIAL  TACTICS. 

Many  lawyers  take  a  signed  statement  from 
the  witnesses,  and  some  take  a  sworn  statement. 
Everything  considered,  it  is  advisable  to  take  a 
signed  statement  from  a  witness.  For  in- 
stance a  client  comes  into  a  lawyer's  office  and 
says  that  there  has  been  a  terrible  calamity  in 
his  factory  the  night  before.  A  large  piece  of 
machinery  fell,  and  injured  somebody.  It  is  ad- 
visable then  and  there  for  the  client  to  bring 
the  witnesses  to  the  lawyer's  office  and  for  him 
to  go  over  the  matter  with  them  thoroughly,  to 
get  their  facts,  write  them  out,  and  have  them 
sign  their  statement.  Some  even  have  them 
swear  to  the  statement,  which  is  rather  meaning- 
less, because  an  oath,  under  such  circumstances 
has  no  legal  effect.  The  advantage  of  having 
these  statements  is  that  the  case  may  come  on 
for  trial  perhaps  three  or  four  years  after- 
wards ;  by  that  time,  the  witnesses  may  have  be- 
come unfriendly;  they  may  have  left  their  em- 
ployment, and  may  have  some  ill-feeling  against 
the  client.  If  they  then  appear  as  witnesses 
against  the  client  and  misrepresent  the  facts, 
statements  which  they  themselves  signed  at  the 
time  may  be  used  to  refute  them  and  to  show 
what  the  facts  really  were,  and  in  that  way  their 
testimony  is  defeated.  It  will  sometimes  be 
found  that  if  the  witnesses  afterwards  turn  and 
want  to  defeat  the  client  they  will  declare  that 


PRESERVING  THE  EVIDENCE.  129 

the  statement  they  gave  was  not  put  down  as 
they  said  it,  but  that  the  attorney  and  his  ste- 
nographer took  it  down  falsely.  Some  lawyers 
are  careful  to  have  the  witness  write  the  whole 
statement  and  sign  it  himself,  so  he  cannot  after- 
wards say  someone  put  it  down  falsely.  Even 
then  a  mendacious  employe  who  writes  and  signs 
such  a  statement  and  later  testifies  against  the 
client  may  declare  that  he  was  coerced  under 
threat  of  discharge  to  write  a  false  statement. 
Of  course  if  that  develops  on  the  witness  stand 
it  is  very  bad  for  the  client,  even  though  it  is 
untrue.  So  the  matter  of  signed  statements  has 
its  advantages  and  its  disadvantages.  How- 
ever, everything  considered  it  would  seem  ad- 
visable to  take  the  signed  statements;  to  take 
them  if  possible  in  the  handwriting  of  the  man 
who  makes  the  statement  and  in  the  presence  of 
some  reliable,  intelligent  person  as  witness  who 
can  later  show  in  court,  if  necessary,  that  the 
statements  were  properly  taken. 

In  regard  to  a  point  which  is  apt  to  be  con- 
tradicted while  it  is  well  to  cover  it  by  a  deposi- 
tion to  be  used  in  case  of  necessity  it  is  much 
better  to  have  the  living  witness  in  court  than 
a  deposition,  assuming  that  the  witness  is  one 
who  makes  a  good  appearance  in  court.  If  the 
witness  is  one  who  make  a  bad  impression  it  is 
better  to  take  his  deposition  because  this  can  be 


130  TRIAL  TACTICS. 

done  quietly  in  the  office  of  a  notary.  Some- 
times people  are  extremely  nervous  and  will 
therefore  make  a  bad  public  impression  yet  they 
will  make  a  very  fine  deposition  if  taken  in  the 
quiet  of  a  notary's  office. 

In  some  states  the  law  seems  to  be  somewhat 
defective  in  this  respect.  Depositions  are  not 
allowed  to  be  taken  in  all  cases  but  only  in  those 
given  in  the  statute,  for  instance  if  a  witness  is 
sick  or  about  to  leave  the  state.  In  the  absence 
of  such  conditions  depositions  cannot  be  taken 
but  if  it  still  may  be  necessary  to  take  the  deposi- 
tion, there  is  in  some  jurisdictions  a  process 
called  the  perpetuating  of  evidence,  the  taking 
of  testimony  in  an  entirely  new  suit,  an  original 
suit.  That  kind  of  evidence  has  been  used  with 
good  effect  in  a  case  at  law  in  this  way.  A  man 
had  been  killed  by  falling  machinery  and  the 
only  witness  who  could  give  any  testimony  what- 
soever about  it  was  the  engineer,  at  the  time  in 
the  employment  of  the  defendant.  It  was 
feared  that  the  defendant  would  see  to  it  that 
the  engineer  was  out  of  the  city  at  the  time  of 
the  trial  in  order  that  the  plaintiff  could  not  sub- 
poena him.  So  the  plaintiff's  attorneys  imme- 
diately instituted  this  additional  or  collateral 
suit,  called  a  suit  for  the  perpetuating  of  testi- 
mony and  in  that  suit  took  the  testimony  of  the 
engineer  and  laid  it  away  for  future  reference. 


PRESERVING  THE  EVIDENCE.   131 

Their  precaution  proved  to  be  well  taken  be- 
cause when  the  case  approached  trial  they  were 
not  able  to  find  the  engineer  but  by  having  this 
testimony  they  were  enabled  to  force  a  very  good 
settlement  out  of  the  defendant;  whereas  in 
the  absence  of  that  testimony  the  plaintiff  would 
have  appeared  without  any  evidence  and  neces- 
sarily would  have  been  non-suited. 

If  a  witness  is  unable  to  speak  English  an 
interpreter  should  be  provided  in  the  court.  Of 
course  the  benefit  of  the  witness  is  lost  if  there 
is  not  an  interpreter,  and  it  is  as  much  the  law- 
yer's  duty  to  have  one  present  as  it  is  to  have 
the  witness  present.  It  is  not  the  duty  of  the 
court  to  furnish  an  interpreter  nor  to  wait  until 
one  is  obtained.  There  are  cases  where  very  im- 
portant testimony  has  been  lost  because  it  was 
to  be  given  through  witnesses  who  could  not 
speak  English  and  the  attorney  had  omitted  to 
provide  an  interpreter.  The  interpreter  should 
of  course  be  skilled  because  it  is  not  every  one 
who  is  able  to  interpret  even  though  he  is  well 
informed  in  both  languages.  He  has  to  be  very 
ready  and  very  accurate  and  a  man  of  consider- 
able strength  of  memory  to  catch  what  is  said 
and  remember  it  and  repeat  it  accurately. 

Preparation  must  be  made  from  the  office  also 
that  subpoenas  are  served,  that  the  witnesses  are 
found  to  be  in  attendance,  that  those  who  come 


132  TRIAL  TACTICS. 

voluntarily  are  there  and  those  who  refuse  to 
come  voluntarily  are  forced  to  come  by  sub- 
poena. It  is  a  paradoxical  truth  that  it  is  good 
policy  not  to  subpoena  witnesses  who  must  be 
forced  to  come  and  to  subpoena  the  witnesses 
who  do  not  have  to  be  forced  in.  It  weakens  the 
testimony  of  a  witness  when  he  seems  too  eager, 
too  willing  to  come  to  court  but  if  he  is  sub- 
poenaed in,  to  the  question,  "Why  are  you 
here1?"  he  can  simply  answer,  "I  was  subpoe- 
naed here."  If  he  comes  of  his  own  accord  it 
looks  much  as  though  he  were  eager  to  help  that 
side,  and  although  it  should  not  be  so  it  weak- 
ens his  testimony  in  that  regard.  On  the  other 
hand  a  witness  who  does  not  want  to  come  and 
is  to  his  inconvenience  forced  in  with  a  sub- 
poena, is  apt  to  get  very  angry  about  it  and  to 
take  the  first  opportunity  to  escape.  If  the  case 
goes  over  until  the  next  day  he  will  not  come 
back  unless  care  is  taken  to  have  an  order  of 
court  compelling  him  to  come  back.  And  per- 
haps even  when  he  testifies  he  will  show  antag- 
onism. So  it  is  well  to  try  to  get  such  a  witness 
to  come  without  a  subpoena.  Of  course  no  gen- 
eral rule  can  be  laid  down  which  is  not  subject 
to  modification  with  regard  to  the  people  who 
are  being  dealt  with. 

Notices  to  produce  must  be  served  if  there  are 
documents  which  have  to  be  brought  in.     Copies 


PRESERVING  THE  EVIDENCE.    133 

are  not  allowed  to  be  offered  or  statements  of 
the  contents  of  writings  unless  a  demand  has 
first  been  made  in  such  a  way  as  the  law  requires, 
to  have  the  originals  there.  If  the  adversary 
in  a  litigation  has  the  instrument  in  question  a 
notice  to  produce  the  original  must  be  served 
upon  him  or  his  lawyers.  But  if  another  person, 
a  person  not  in  the  litigation,  has  the  original 
paper  then  a  subpoena  duces  tecum  must  be 
served  upon  him,  an  order  to  bring  with  him  the 
particular  paper  in  question  and  the  paper  will 
have  to  be  sufficiently  described.  This  subject 
however  is  covered  in  detail  in  the  books. 

As  has  been  said  before,  the  presence  of  the 
living  witnesses  is  to  be  preferred,  if  at  all  ob- 
tainable, to  their  depositions.  Frequently  the 
presence  of  witnesses  in  court  and  their  appear- 
ance in  court  have  great  influence  upon  the  jury. 
There  is  a  story  told  which  is  perhaps  not  in 
keeping  with  the  highest  ideal  of  advocacy,  but 
it  is  related  of  Rufus  Choate,  probably  the 
greatest  American  jury  lawyer  of  his  time.  It 
is  said  that  he  was  defending  a  man  who  was 
sued  by  a  woman,  no  longer  youthful,  who 
claimed  that  this  man  had  agreed  to  marry  her 
and  had  broken  the  agreement.  While  the  wo- 
man bore  traces  of  years  the  man  was  extremely 
youthful  looking  although  he  was  well  along  in 
years  and  he  happened  to  be  of  comparatively 


134  TRIAL  TACTICS. 

slight  stature.  The  story  is  that  Choate  caused 
him  to  be  dressed  in  short  trousers  in  a  boy's  suit 
with  a  large  collar  coming  down  over  his  jacket 
and  shoulders,  and  presented  him  in  that  man- 
ner in  court  as  though  he  were  a  mere  infant, 
young  enough  to  be  the  child  of  the  woman  in 
question.  This  story  is  printed  on  pretty  good 
authority  about  Rufus  Choate,  but  though  it 
may  have  been  an  effective  trick  it  is  doubtful 
whether  it  is  to  be  commended.  There  are  sim- 
ilar tricks  that  will  be  found  mentioned  in  text 
books  and  in  popular  treatises  but  some  of  them 
are  woefully  near  improper  practice  and  should 
not  be  commended.  They  should  be  guarded 
against  when  an  attempt  is  made  by  the  adver- 
sary to  practice  them. 

A  trick  often  resorted  to  in  the  case  of  a  man 
accused  of  a  heinous  offense,  murder  for  in- 
stance, is  to  have  his  mother  sit  beside  him  in 
the  court  room.  There  have  been  cases  where  it 
is  said  that  great  advocates  have  borrowed  or 
hired  a  mother  to  sit  beside  the  accused  in  the 
court  room  and  look  grief  stricken.  That  comes 
very  near  deserving  disbarment.  Of  course  the 
defendant  has  the  advantage.  If  he  is  found 
not  guilty  that  is  the  end  of  it  because  the  State 
cannot  get  a  new  trial.  But  if  anything  like 
that  is  practiced  in  a  civil  case  and  is  found  out 
and  a  verdict  is  obtained  by  imposition  there  is 


PEESERVING  THE  EVIDENCE.    135 

no  doubt  that  the  verdict  would  be  set  aside.  It 
might  be  urged  that  the  man  has  the  right  to 
have  some  one  sit  beside  him  because  if  he  had 
no  mother  he  should  have  one;  if  his  mother 
were  alive  or  within  reach  most  likely  she  would 
be  sitting  there  with  him,  but  that  does  not  neces- 
sarily follow.  So  far  as  the  proper  manage- 
ment of  the  case  is  concerned  it  is  no  doubt  the 
duty  of  the  attorney  to  observe  within  the  pro- 
prieties of  his  profession  all  those  minor  matters 
which  appeal  so  much  to  the  jury  in  such  cases, 
but  at  times  it  may  be  overdone. 

Injured  people  may  be  seen  sitting  in  the  pres- 
ence of  the  jury  and  exhibiting  to  the  jury  the 
stump  of  the  arm  or  of  the  leg  where  the  rest  of 
the  member  was  sawed  off  by  machinery  or  cut 
off  by  a  car.  This  is  held  allowable  and  no 
doubt  it  is  conducive  to  results ;  perhaps  if  it  is 
not  done  the  plaintiff  will  blame  his  lawyer  if 
the  verdict  is  small  or  if  the  verdict  is  for  the 
defense.  The  courts  have  held  such  things  per- 
missible but  in  the  writer's  opinion  they  should 
not  be  permitted.  They  serve  no  purpose  in  en- 
lightening the  jury  and  are  certainly  merely  for 
the  purpose  of  exciting  sympathy  and  prejudice. 
If  a  man  testifies  for  instance  that  his  foot  was 
cut  off  at  the  ankle,  and  that  he  wears  a  wooden 
foot  encased  in  a  shoe,  the  jury  cannot  be  en- 
lightened any  more  by  having  him  remove  the 


136  TRIAL  TACTICS. 

shoe  and  the  wooden  foot  and  show  the  stump 
sawed  at  the  ankle. 

Much  preparation  is  necessary  then  in  the 
presentation  of  the  subject  matter.  For  in- 
stance, the  condition  of  the  machinery,  or  the  al- 
leged defective  sidewalk  involved  in  the  litiga- 
tion may  be  in  question.  At  the  present  time 
these  matters  are  frequently  reproduced  in  the 
presence  of  the  jury  by  means  of  photographs. 
The  lawyer  should  make  wise  provision  in  that 
regard  if  he  has  the  opportunity.  But  time  is 
required  to  do  all  these  things.  When  the  case 
is  on  trial  it  cannot  be  done;  neither  can  the 
court  wait  to  give  the  opportunity  to  do  it  then. 
The  time  to  attend  to  all  of  this  is  when  pre- 
paring the  case  in  the  office. 

Sometimes  provision  is  made  for  the  jury  to 
go  and  look  at  the  locality  in  question.  It  is  a 
very  common  practice  in  condemnation  cases  for 
the  jury  itself  to  determine  to  what  extent  a  rail- 
road has  affected  a  particular  street  and  the 
buildings  on  the  street,  and  thus  to  estimate  the 
damage  done  to  the  surrounding  property. 
That  has  its  advantages  and  its  disadvantages. 
The  side  that  is  sure  to  win  may  ask  to  have  this 
done  because  where  the  jury  itself  sees  the  sub- 
ject matter  the  verdict  given  by  them  is  rarely 
disturbed.  The  trial  judge  may  not  have  been 
along,  or  if  he  was  he  is  not  a  juror  and  what  the 


PRESENTING  THE  EVIDENCE.   137 

jury  saw  cannot  get  into  the  evidence,  into  the 
record,  even  by  means  of  photographs  and  the 
reviewing  court  will  say — "The  jury  saw  these 
objects,  so  why  should  we  say  the  jury  made  a 
wrong  decision  upon  things  which  it  saw,  when 
we  have  never  seen  them  at  all?"  Every  pre- 
sumption will  be  of  the  correctness  of  the  jury's 
decision. 

Parties  at  times  display  ponderous  machinery 
before  the  jury,  especially  in  patent  cases.  In 
one  case  50  feet  of  rope  about  three  inches  in 
diameter  were  exhibited,  which  was  rather  ab- 
surd because  the  party  who  was  interested  in 
that  rope  need  have  shown  only  six  inches  of  it 
and  then  let  the  imagination  of  the  jury  supply 
the  rest.  But  that  party  presented  that  long 
rope  and  the  reviewing  court  said,  "The  jury 
saw  the  rope  and  we  did  not,"  so  they  would  not 
assume  that  the  jury  had  drawn  a  wrong  con- 
clusion from  the  appearance  of  the  rope. 

In  a  recent  case  a  stone  weighing  135  pounds 
was  brought  into  the  court  room.  The  question 
was  whether  it  was  a  proper  stone  to  form  one 
of  a  series  of  steps.  Fortunately  the  court  took 
the  case  from  the  jury  and  the  opponent  must 
now  get  the  stone  into  the  record  if  he  wants  to 
take  the  case  higher.  The  risk  was  taken  be- 
cause the  defendant's  attorney  knew  that  this 
stone  could  be  carried  through  all  the  courts  if 


138  TRIAL  TACTICS. 

necessary  and  he  was  satisfied  that  the  jury 
would  from  the  mere  inspection  of  the  stone  say 
it  was  a  suitable  one.  This  seemed  a  proper 
thing  to  do  because  the  witnesses  were  saying 
that  it  was  very  defective,  that  it  was  crooked 
and  weak  and  so  it  seemed  advisable  to  allow  the 
stone  to  speak  for  itself.  It  was  found  to  be  a 
very  good  looking  stone  and  the  court  took  the 
case  away  from  the  jury.  But  nothing  should 
be  taken  into  court  which  cannot  be  used  if  the 
case  goes  the  wrong  way. 


CHAPTER  IX. 

THE  OPENING  STATEMENT. 

IN  his  opening  address  in  court  the  lawyer 
must  explain  to  the  jury  more  fully  than 
he  did  before,  the  nature  of  the  case.  It 
will  be  remembered  that  when  the  jury  was 
chosen  the  attorneys  explained  to  the  jurors  in 
a  brief,  general  statement  what  kind  of  case  it 
was;  now  the  particular  nature  of  the  case  on 
trial  must  be  stated.  The  attorney  tells  them 
that  he  is  for  the  plaintiff  and  he  gives  them  an 
outline  of  what  he  expects  to  prove.  He  will 
state  for  instance  that  his  client  worked  for  a 
certain  number  of  years  for  the  defendant  at  a 
certain  kind  of  work  at  an  agreed  price,  that  he 
received  some  pay  and  that  the  balance  is  un- 
paid. He  will  then  give  them  the  details  of  the 
circumstances. 

After  the  plaintiff 's  attorney  has  spoken,  in 
both  criminal  and  civil  cases,  the  defendant's  at- 
torney has  the  right  to  speak  and  to  tell  the  jury 
in  a  brief  outline  what  the  defense  is  going  to 
be.  It  is  the  law  in  probably  every  jurisdiction 
that  the  defendant's  attorney  may  here  do  one 
of  three  things.  He  may  open  with  a  statement 

139 


140  TRIAL  TACTICS. 

of  his  defense,  or  lie  may  waive  the  statement 
altogether  or  he  may  reserve  it.  He  either  tells 
what  his  outline  of  defense  is  or  says  he  does 
not  care  to  do  so ;  or  he  waits  until  the  plaintiff 's 
evidence  is  all  in  or  the  prosecution's  evidence 
is  all  in,  and  then  makes  his  statement  of  the  de- 
fense. That  is  permissible  but  care  must  be 
used  in  doing  it.  If  the  defendant's  attorney 
says  he  waives  his  statement  or  in  a  vague  sort 
of  way  says  he  does  not  care  to  make  a  statement 
he  afterwards  cannot  make  any.  But  if  he  says 
he  reserves  it  he  can  make  it  later.  There  is  a 
good  deal  to  be  considered  in  determining  the 
manner  of  making  the  statement  of  defense  and 
whether  to  make  it  at  all  or  not. 

As  a  general  rule  the  defendant  ought  to  make 
a  statement  because  although  the  plaintiff  has 
technically  the  burden  of  proof,  sometimes  he 
really  has  not  much  burden;  his  case  is  simply 
stated  and  practically  is  such  that  it  can  not  be 
easily  contradicted;  but  the  defense  is  perhaps 
some  entirely  new  affirmative  matter.  Now 
once  more  as  to  the  plaintiff's  statement :  assume 
a  case  in  which  the  plaintiff  is  injured  by  a  rail- 
road collision  in  which  essentially  the  negligence 
of  the  company  is  not  going  to  be  greatly  contro- 
verted, or  the  care  of  the  plaintiff,  or  the  extent 
of  the  injury;  but  it  will  eventually  appear 
that  the  company  relies  on  a  release  as  defense. 


THE  OPENING  STATEMENT.      141 

In  such  a  case  the  plaintiff 's  statement  is  a  very 
perfunctory  matter.  But  assume  that  the 
plaintiff 's  case  is  going  to  be  resisted  on  all  ma- 
terial points.  Then  the  plaintiff's  attorney 
should  open  the  case  clearly  and  fully  and 
strongly  for  this  reason:  He  has  the  burden 
upon  him.  He  has  to  show  to  the  jury  that  he  is 
entitled  to  get  money  from  the  defendant,  if  it  is 
a  civil  case,  or  that  he  is  entitled  to  have  the  ac- 
cused sent  to  prison  or  to  the  gallows  if  it  is  a 
criminal  case.  He  must  convince  the  jury  of 
that ;  he  has  to  build  up  the  case ;  he  has  to  start 
from  the  foundation  and  make  the  superstruc- 
ture and  the  roof  and  the  complete  building ;  be- 
cause if  there  is  anything  wanting  in  the  edi- 
fice the  jury  cannot  hold  with  him. 

It  is  well  known  from  experience  how  diffi- 
cult it  is  to  listen  for  the  first  time  to  a  new 
reader  or  speaker,  whose  voice  is  a  little  differ- 
ent^ to  grasp  thoroughly  what  he  says.  Now  of 
the  men  in  the  jury  box,  one  is  possibly  the 
driver  of  an  omnibus,  a  person  who  can  scarcely 
read,  who  has  never  heard  any  one  read.  An- 
other one  is  perhaps  a  salesman,  who  of  course 
is  more  accustomed  to  the  ordinary  affairs  of  the 
day  than  to  continuous  use  of  the  intellect.  Im- 
agine then  jurors  knowing  nothing  about  this 
logical  structure  that  is  going  to  be  built  and 
eight  or  ten  witnesses,  one  after  another,  com- 


142  TRIAL  TACTICS. 

ing  up  and  describing  something  to  them;  rat- 
tling off  their  evidence  when  perhaps  the  court 
room  is  noisy,  so  that  not  one-third  of  what  they 
say  can  be  heard,  much  less  understood.  Such 
evidence  as  that  is  as  hard  for  the  average  juror 
to  follow  unaided  as  an  opera  without  the 
libretto.  He  must  first  get  a  clew  to  what  is 
coming;  then  it  is  very  easy  to  understand  and 
very  pleasant.  A  good,  strong  opening  is  a 
libretto.  It  is  an  explanation  to  the  jury,  in 
general  terms  perhaps,  but  nevertheless  a  clear 
and  distinct  outline  of  what  is  coming;  and  a 
good,  strong  opening  will  carry  the  jury  even  if 
they  have  not  heard  a  word  of  the  testimony,  so 
long  as  there  is  no  one  to  contradict  it.  The 
jury  will  believe  that  the  testimony  they  hear 
is  the  testimony  that  the  opener  said  would 
come. 

The  construction  of  the  opening  may  again 
be  compared  to  the  building  of  a  house.  Of 
course  there  are  exceptions  to  everything,  but 
the  general  idea  should  always  progress  step  by 
step  in  the  most  natural,  logical  and  reasonable 
sequence.  A  house  builder  does  not  first  hang 
the  roof  up  in  the  air  by  props  and  then  later 
add  the  superstructure  and  then  the  foundation. 
The  foundation  is  first  laid,  then  the  main  struc- 
ture is  erected  and  ultimately  the  roof.  Last  of 
all  some  ornamentation  is  possibly  added.  And 


THE  OPENING  STATEMENT.      143 

so  in  the  statement  of  the  case,  ordinarily  the 
earliest  part  chronologically  should  be  stated 
first;  that  is  where  the  matter  started.  Then 
the  next  step  and  then  the  next  should  be  added 
in  logical  sequence. 

Suppose  for  instance  a  very  complicated  mur- 
der case  in  which  it  is  wished  to  show  a  motive 
for  the  homicide.  The  prosecutor  perhaps 
starts  in  by  saying  that  the  accused  is  indicted 
for  a  murder  committed  in  December,  1904. 
Then  he  would  not  properly  say,  "In  July,  1904, 
there  was  a  very  serious  quarrel  between  the  ac- 
cused and  the  deceased,  and  then,  Gentlemen  of 
the  Jury,  I  should  tell  you  that  before  that,  some 
years  ago,  the  deceased  offended  the  accused  by 
insulting  a  member  of  his  family."  That  would 
be  going  backwards,  building  the  house  from  the 
roof  down  and  confusing  the  jury.  He  should 
start  at  the  beginning:  "This  tragedy  has  its 
origin  in  the  year  1901,  at  which  time  the  de- 
ceased married  the  sister  of  the  accused.  They 
lived  happily  together  for  six  or  seven  months 
and  then  bitter  feelings  arose  between  this  hus- 
band and  wife  and  after  awhile  we  find  that  she 
commenced  complaining  to  the  accused  of  her 
husband;  later  more  bitterness  developed,  etc." 
In  this  manner  he  should  carry  the  sequence 
right  up  to  the  date  on  which  the  fatal  blow 


144  TRIAL  TACTICS. 

was  given  and  the  jury  would  grasp  the  entire 
affair. 

An  instance  of  a  civil  case  may  be  given,  a 
complicated  case  about  a  contract  relating  to 
land.  The  lawyer  should  start  at  the  early  ne- 
gotiations ;  state  that  a  paper  contract  was  given 
with  reference  to  them,  but  that  when  later 
somebody  else  offered  to  buy  the  property  it  was 
disclosed  that  the  first  statement  made  to  the 
fir^t  purchaser  back  at  the  beginning  was  false. 
Then  when  he  discovered  that  the  first  statement 
made  to  him  was  false  he  immediately  made  a 
demand  to  have  his  money  returned.  This  is 
better  than  to  begin  by  saying  that  the  plaintiff 
served  a  notice  on  the  defendant  that  he  wanted 
his  money  back  because  a  statement  he  had  made 
to  him  three  years  before  was  not  true.  Going 
backwards  in  that  manner  confuses  the  jury. 
The  case  should  be  opened  clearly  and  chrono- 
logically. That  as  a  rule  is  the  best  way,  for  it 
ends  the  statement  just  where  it  is  wanted  to  de- 
termine the  present  issue. 

The  statement  should  be  plain,  clear,  concise, 
and  the  language  have  very  few  adornments. 
Anything  in  the  way  of  oratory  or  pathos  should 
be  reserved  for  the  closing  argument.  Its  value 
is  discounted  by  bringing  it  out  too  soon  because 
it  will  fall  flat  when  it  is  most  needed.  At  pres- 


THE  OPENING  STATEMENT.      145 

ent  simple  logic  is  all  that  is  wanted,  simple  in- 
formation for  the  jury. 

This  is  the  general  principle  on  which  the 
plaintiff  should  make  his  opening,  but  of  course 
it  must  be  varied  in  accordance  with  the  nature 
of  the  case  and  it  is  the  duty  of  the  advocate  to 
use  his  material  to  the  best  advantage.  So  if 
the  plaintiff  has  a  very  clear  case  where  the  sym- 
pathies and  the  evidence  are  for  the  plaintiff  he 
should  open  to  the  jury  fully.  But  if  the  client 
is  an  aged  person  or  a  crippled  person  with  a 
very  slim  case  prudence  would  dictate  avoiding 
too  closely  accurate  details  and  the  opening 
should  be  more  broad. 

The  opening  for  the  defense  is  on  very  much 
the  same  theory.  If  the  defendant  has  a  strong 
defense,  if  he  has  a  defense  which  is  logical  and 
clear  and  which  he  feels  confident  he  can  sup- 
port with  good,  honorable  testimony,  and  espe- 
cially if  there  is  much  sympathy  in  behalf  of  the 
defense,  it  would  be  well  for  him  to  open 
promptly  because  he  has  nothing  to  fear.  Be- 
sides if  the  plaintiff  has  opened  his  case  and  the 
defendant  has  not  it  gives  the  plaintiff  the  ad- 
vantage that  the  statement  of  his  case  and  of  his 
witnesses  comes  unimpaired  in  the  first  instance 
to  the  jury,  which  tends  at  the  beginning  to  cre- 
ate a  very  strong  impression  on  the  jury,  one 
which  it  is  afterwards  difficult  to  overcome.  If 


146  TRIAL  TACTICS. 

after  the  plaintiff  has  opened  his  case  and  before 
he  has  called  any  witnesses  the  defendant,  if  he 
is  sure  of  his  ground,  opens  his  defense  and 
shows  to  the  jury  on  what  he  relies,  he  discred- 
its, as  it  were,  the  plaintiff's  case  and  it  does 
not  go  to  the  jury  with  such  force  as  if  the  de- 
fendant had  not  opened. 

On  the  other  hand  it  is  very  frequently  a 
source  of  danger  to  the  defense  to  open,  because 
it  may  expose  the  defense  to  the  risk  of  the 
plaintiff's  building  up  a  part  of  his  case  from 
the  defense  itself,  which  otherwise  the  plaintiff 
could  not  do  or  possibly  did  not  have  the  in- 
formation to  do.  There  may  be  some  point 
missing  in  the  plaintiff's  own  case  which  the 
plaintiff  really  needs  from  the  defense;  and  if 
the  defense  is  good  enough  to  supply  that  point 
it  helps  to  build  up  the  case. 

A  case  where  the  plaintiff  is  injured  in  a  piece 
of  machinery  may  be  an  illustration.  It  must 
be  shown  that  the  defendant  was  negligent  in 
having  that  particular  machine  in  that  particu- 
lar condition.  The  plaintiff  is  frequently  help- 
less in  that  matter.  He  has  not  had  the  advan- 
tage of  examining  the  machine  in  question, 
whereas  the  defendant  has  had  that  benefit. 
Now  if  the  defendant  opens  and  discloses  the  de- 
fense, conceding,  for  instance,  that  the  particu- 
lar piece  of  machinery  was  out  of  order  for  a 


THE  OPENING  STATEMENT.      147 

long  time  but  claiming  as  a  defense  that  the 
plaintiff  gave  a  release  or  receipt  against  the  in- 
jury the  defense  has  actually  established  for  the 
plaintiff  the  plaintiff's  case;  something  that  the 
plaintiff  could  not  have  established  for  himself, 
namely,  the  fact  that  the  machinery  was  out  of 
order  and  in  what  respect  it  was  out  of  order. 

Therefore,  where  there  is  nothing  to  gain  by 
opening,  and  only  something  to  lose,  the  de- 
fense should  not  open  at  all.  The  defense 
should  not  waive  the  opening  but  should  reserve 
the  opening,  because  then  when  the  plaintiff  is 
through  and  the  plaintiff's  case  is  all  in,  the  de- 
fendant may  give  his  opening  address  and  to  a 
great  extent  demolish  the  plaintiff's  case,  which 
is  already  in,  by  weakening  the  impression  it  has 
made  with  the  jury,  thus  paving  the  way  for  the 
jury  to  receive  more  kindly  and  with  more  force 
what  the  defendant  will  then  put  in  by  his  wit- 
nesses. 

Very  frequently  the  defense  has  little  to  gain 
by  the  opening  after  the  evidence  for  the  plain- 
tiff is  in.  As  a  general  rule  the  defense  gains 
by  reserving  the  opening,  unless  his  innocence  is 
unquestionable,  in  which  case  it  is  well  to  tell  tho 
jury  so  at  once.  A  practical  general  rule  ic  that 
if  the  defendant  is  guilty  it  is  wise  to  be  careful 
about  the  opening;  to  hear  all  that  is  possible 
and  lie  low.  If  he  is  innocent  he  cannot  tell  the 
jury  too  quickly.  „ 


CHAPTEE  X. 

INTRODUCING  THE  EVIDENCE. 

AN  important  point  in  the  conduct  of  a  case 
is  the  separating  or  excluding  of  the  wit- 
nesses, in  regard  to  which  the  practice 
differs  in  different  jurisdictions.  Some  hold 
that  the  request  to  exclude  or  separate  the  wit- 
nesses, to  "put  them  under  the  rule,"  as  it  is 
technically  phrased,  must  be  made  immediately 
at  the  beginning  of  the  case ;  that  is  even  before 
the  opening  statements  are  made.  Others  have 
the  practice  that  the  motion  shall  be  made  im- 
mediately after  the  opening  statements  and 
before  any  witness  is  called.  Still  others  have 
the  practice  that  either  party  may  make  the 
motion;  for  instance  before  the  plaintiff  puts 
in  his  witnesses  the  plaintiff  may  move  the 
court  that  the  witnesses  be  separated  and  if  the 
ruling  is  favorable  all  the  witnesses  go  out,  both 
the  plaintiff's  and  the  defendant's,  except  the 
chief  witness  on  each  side,  who  remains  in. 
For  instance  the  plaintiff  himself  remains  in, 
the  defendant  himself  remains  in  or  if  one 
of  the  parties  be  a  corporation  some  person 
stays  who  represents  the  corporation. 

148 


INTRODUCING  THE  EVIDENCE.  149 

In  some  jurisdictions  if  the  motion  is  not 
made  then  by  either  side  the  plaintiff  puts  on 
his  own  witnesses;  then,  when  the  defendant 
calls  his  witnesses  the  plaintiff  may  move  that 
they  be  separated.  In  other  jurisdictions  how- 
ever if  the  plaintiff  or  defendant  fails  to  make 
the  motion  in  advance  before  the  plaintiff's  wit- 
nesses are  heard  neither  party  can  make  the 
motion  after  the  plaintiff's  witnesses  have  been 
heard.  The  Court  would  not  exclude  the  de- 
fendant's witnesses  if  the  plaintiff's  witnesses 
were  not  also  excluded. 

If  the  witnesses  are  excluded  it  means  of 
course  that  each  one  shall  testify  without  hear- 
ing the  others.  Suppose  however  the  witnesses 
are  sent  out  but  the  plaintiff  who  is  an  impor- 
tant witness  remains  in  the  court  room.  Now  if 
the  plaintiff  calls  first  an  outside  witness  this 
to  some  extent  overcomes  the  separation  of  wit- 
nesses because  if  that  witness  testifies  first  the 
plaintiff  hears  what  he  has  to  say  and  gets  the 
benefit.  So  if  the  plaintiff  is  in  the  court  and 
his  witnesses  are  out  and  he  is  about  to  call 
other  witnesses  the  defendant  should  move  that 
the  plaintiff  testify  first  in  order  to  get  the  bene- 
fit of  the  separation  of  witnesses.  The  granting 
of  this  motion  rests  somewhat  on  discretion, 
and  in  some  jurisdictions  the  Court  will  say  that 
he  cannot  control  the  manner  in  which  the  plain- 


150  TRIAL  TACTICS. 

tiff  shall  call  his  witnesses  and  will  refuse  to 
entertain  the  motion.  In  some  jurisdictions 
however  it  has  been  held  error  not  to  grant  that 
motion  for  the  reason  that  the  separation  of  wit- 
nesses has  been  overcome  as  has  been  shown. 
At  all  events  whether  it  is  error  or  not  error  or 
whether  the  Court  will  grant  the  request  or  not 
the  defendant  ought  to  make  the  motion  be- 
cause if  the  plaintiff  insists  that  he  will  not  tes- 
tify until  his  witnesses  have  testified  he  thereby 
weakens  himself  materially  before  the  jury  be- 
cause this  is  equivalent  to  saying  to  the  jury 
that  he  is  afraid  to  testify  before  his  witness 
does  for  fear  he  will  contradict  his  witness. 

The  separation  of  witnesses  may  be  of  vast 
benefit,  though  as  with  many  other  things  this 
depends  somewhat  upon  which  side  of  the  case 
a  lawyer  is  on.  If  he  has  a  case  in  which  he 
feels  that  he  is  undoubtedly  in  the  right  and  yet 
fears  that  the  opposition  may  defeat  him  by  a 
mass  of  witnesses  most  of  whom  possibly  are 
crooks  and  perjurers  he  should  by  all  means  in- 
voke the  rule.  If  he  feels  clear  and  strong  in 
regard  to  his  own  witnesses,  that  they  are  telling 
the  truth  and  that  any  one  who  opposes  them 
must  necessarily  be  false  he  should  see  that  the 
witnesses  are  separated,  because  in  this  way  he 
gets  the  best  chance  of  exposing  a  liar.  Sooner 
or  later  those  who  are  telling  lies  and  who  do 


INTRODUCING  THE  EVIDENCE.  151 

not  hear  their  confederates'  stories  will  contra- 
dict each  other.     Of  course  under  these  circum- 
stances   contradictions   in   the    important    and 
essential  parts  of  the  story  will  seldom  be  found 
because  liars  are  usually  shrewd  enough  to  tell 
a  pretty  good  story.    They  have  it  arranged  be- 
forehand so  that  to  a  certain  extent  it  will  tally ; 
but  sooner  or  later  they  will  be  caught  and  there 
is  a  better  chance  of  catching  them  in  something 
if  they  are  kept  apart  than  if  they  all  sit  in  the 
court  room  and  listen  and  learn  how  those  who 
preceded    them     evaded    the     cross-examiner. 
Even  though  the  liar  is  not  caught  directly  he 
will  be  caught  indirectly  because  those  who  are 
outside  do  not  know  what  is  taking  place  inside 
and  they  will  be  afraid  when  they  come  inside 
to  say  either  yes  or  no  for  fear  of  being  con- 
tradicted.    They  will  say,  "I  don't  remember," 
or  "I  ought  to  know  but  I  don't  know,"  and 
finally  they  will  say  that  they  do  not  know  some- 
thing which  they  must  necessarily  know  if  they 
are  telling  the  truth.     If  they  are  not  caught  in 
a  direct  contradiction  they  will  be  detected  in  an 
indirect  contradiction.     The  more  stupid  ones 
will  be  caught  in  the  indirect  contradiction  and 
the  more  crooked  ones  who  are  eager  at  all 
hazards  to   carry  their  side  through  will  be 
exposed  by  the  more  flagrant  contradictions. 
It  is  well  also  if  possible  to  keep  the  witnesses 


152  TRIAL  TACTICS. 

in  the  court  room  before  the  case  is  reached  so 
that  they  will  become  accustomed  to  the  sur- 
roundings. They  may  see  how  other  cases  are 
tried  and  overcome  the  stage-fright  which  any 
witness  unaccustomed  to  court-room  work  suf- 
fers when  first  called  into  the  witness  chair. 
The  warning  may  be  repeated  which  has  been 
given  before;  to  instruct  the  witnesses  to  tell 
the  plain,  straightforward  truth  and  to  answer 
questions  as  they  are  put  without  feeling  that 
they  are  obliged  to  be  the  attorney  or  the  advo- 
cate. Some  witnesses  seem  to  think  that  because 
they  testify  for  a  side  they  must  help  to  win  the 
case  and  in  their  zeal  they  do  more  harm  than 
good.  It  should  be  impressed  upon  them  that 
they  are  simply  to  tell  the  facts  and  above  all 
that  they  should  not  attempt  to  be  smart  or  glib 
or  anything  of  that  kind.  Efforts  of  this  sort 
make  a  poor  impression  and  have  a  bad  effect  on 
their  side. 

If  the  witness  is  badgered  too  much  by  the 
cross-examiner  the  natural  sympathy  of  the  jury 
will  be  aroused  in  favor  of  the  witness.  He 
need  not  attempt  to  fence  back;  a  trial  is  not  a 
fencing  match  between  the  witness  and  the  cross- 
examiner.  If  the  witness  is  badgered  to  an  un- 
endurable extent  his  judgment  will  usually  sug- 
gest in  the  most  natural  manner  a  pertinent  and 
proper  answer  without  any  effort  on  his  part 


INTKODUCING  THE  EVIDENCE.  153 

to  be  smart  or  to  adopt  such  language  as  the 
lawyer  addresses  to  him. 

The  instruction  may  also  be  repeated  to  prove 
propositions  when  possible  by  one's  own  wit- 
nesses. The  adversary's  witnesses  should  not 
be  called  upon  unless  it  is  absolutely  neces- 
sary. 

It  is  well  sometimes  to  have  influential  people 
to  testify,  for  instance  when  a  man  is  being  de- 
fended who  is  accused  of  crime.  It  is  advisable 
to  call  his  friends  to  the  court  room  to  testify 
that  he  is  a  man  of  good  character.  This  may 
be  an  aid  to  him  because  according  to  law  the 
jury  may  say  that  if  he  is  a  man  of  good  charac- 
ter it  is  not  likely  that  he  committed  the  crime. 
It  is  an  element  by  way  of  defense.  Directly 
it  may  not  count  for  much  in  that  regard  because 
if  the  evidence  is  strong  that  he  committed  the 
crime  the  jury  will  probably  think  that  he  did, 
character  or  no  character,  but  indirectly  it 
amounts  to  a  great  deal  especially  in  small  com- 
munities. Suppose  for  instance  that  in  de- 
fending a  man  accused  of  a  crime  some  ten  or 
twelve  of  the  leading  citizens  of  the  city,  who 
know  the  client,  come  into  the  court  room  and 
testify  that  he  has  always  been  a  man  of  good 
character.  Indirectly  this  influences  the  jurors 
to  believe  that  a  man  who  has  so  many  influ- 
ential friends  must  be  a  pretty  good  sort  of  a 


154  TRIAL  TACTICS. 

man  and  if  the  case  is  close  that  may  decide  in 
his  favor  ^  if  the  case  is  decidedly  against  him 
and  it  is  a  question  of  punishment  they  may  give 
him  a  milder  punishment.  They  think  a  great 
deal  more  of  him  if  worthy  people  believe  in 
him  than  if  he  is  there  without  any  friends  in 
the  world,  as  a  mere  tramp  and  a  vagabond. 
Furthermore  among  those  twelve  influential  men 
who  are  brought  into  the  court  room  there  may 
be  some  who  are  very  friendly  with  some  of  the 
jurors.  Some  of  them  may  be  employers  and 
some  of  the  jurors  may  be  working  for  them. 
At  all  events  there  is  a  manifest  advantage  in 
vouching  for  the  good  character  of  the  client 
and  inducing  the  jury  to  give  him  all  the  con- 
sideration they  possibly  can. 

All  these  things  are  part  of  the  manoeuvring 
of  lawyers,  to  which  they  are  obliged  to  resort, 
to  win  their  cases.  Some  of  them  may  appear 
to  be  trickery;  they  may  seem  to  be  taking  un- 
due advantage;  but  under  the  present  system  it 
is  a  lawyer's  duty  to  employ  them  because  his 
opponent  is  doing  the  same  thing  and  if  he  re- 
frains from  doing  so  he  is  violating  his  duty  to 
his  client  and  giving  his  opponent  an  unques- 
tionable advantage. 

Care  should  be  taken  to  put  the  evidence  in 
just  right;  not  too  much,  not  too  little  but  care- 
fully and  to  cover  each  point.  A  case  that  re- 


INTEODUCING  THE  EVIDENCE.  155 

cently  happened  in  court  is  a  very  good  illustra- 
tion of  the  careless  method  frequently  employed. 
A  railroad  company  was  being  sued  and  its  law- 
yer had  proved  the  running  of  the  trains  and  the 
schedule  of  the  trains  between  certain  stations. 
He  had  a  small  printed  pamphlet  which  the  rail- 
road company  issued,  giving  time  tables  and 
various  other  information,  and  he  was  trying  to 
offer  the  schedule  in  evidence.  Strictly  speak- 
ing it  was  not  evidence  and  the  plaintiff's  lawyer 
objected.  The  railroad  lawyer  persisted  saying 
that  he  was  willing  to  allow  the  little  book  in  its 
entirety  to  be  in  evidence  and  the  plaintiff's 
lawyer  in  an  offhand  way  finally  said:  "Very 
well,  let  the  whole  book  be  in  evidence,"  and  the 
whole  book  was  put  in  evidence.  The  case  was 
finished  and  in  the  argument  the  plaintiff's  at- 
torney stated  that  it  was  a  shame  that  so  rich 
a  corporation  with  $20,000,000  of  stock  should 
hesitate  to  pay  this  poor  victim  a  few  hundred 
dollars.  The  defendant's  lawyer  objected  that 
this  was  not  fair,  whereupon  the  plaintiff's  law- 
yer picked  up  the  pamphlet  and  referred  to  the 
advertisement  of  the  railroad  company  on  its 
back  which  stated  that  the  company  had 
$20,000,000  of  stock.  He  had  a  right  to  argue 
this  because  it  was  in  evidence  and  it  had  an 
undoubted  effect  upon  the  jury. 

When  an  adversary  is  putting  in  his  evidence 


156  TKIAL  TACTICS. 

and  does  not  know  how,  he  should  not  be  helped 
with  it  unless  he  omits  something  that  the  other 
side  needs.  Suppose  for  illustration  that  a 
widow  and  children,  who  always  command  the 
sympathies  of  a  jury,  are  suing  an  insurance 
company.  In  a  case  like  this  any  defect  in  the 
defense  will  be  turned  to  the  plaintiff's  advan- 
tage because  the  jury  is  eager  to  find  in  their 
favor.  Suppose  that  the  man  committed  suicide 
and  that  the  company  claims  it  therefore  does 
not  have  to  pay.  The  plaintiff's  lawyer  will 
then  claim  that  although  he  killed  himself  he 
was  not  sane  at  the  time  and  hence  not  respon- 
sible. Under  the  form  of  policy  if  he  took  his 
own  life  without  responsibility — being  insane, 
the  policy  remains  good.  Now  the  defendant  in 
such  a  case  puts  a  medical  witness  on  as  an  ex- 
pert and  asks  him:  "Doctor,  supposing  so  and 
so,  then  in  your  judgment  was  the  man  sane  or 
insane?"  Of  course  it  is  a  foregone  conclusion 
that  the  medical  expert,  being  there  for  the  com- 
pany, will  say  that  he  was  sane ;  whatever  ques- 
tions the  plaintiff's  lawyer  may  suggest,  his 
answer  will  be  the  same.  Suppose  now  that  the 
important  points  in  the  case  on  which  to  deter- 
mine sanity  or  insanity  are  six,  but  the  defend- 
ant's lawyer,  in  putting  the  hypothetical  ques- 
tion to  this  doctor  puts  in  only  five  points.  The 
plaintiff's  lawyer,  if  he  is  wise  will  keep  quiet 


INTRODUCING  THE  EVIDENCE.  157 

and  let  it  go  at  that  and  then  in  his  final  argu- 
ment for  the  plaintiff  will  say : 

"Why,  Gentlemen  of  the  Jury,  of  course  Dr. 
Blank  for  the  defendant  testified  that  in  his 
opinion  the  man  was  sane ;  but  you  will  remem- 
ber that  the  question  put  to  him — and  you  may 
read  it  yourselves  if  any  one  disputes  me;  I 
will  read  it  from  the  stenographer's  notes — you 
will  remember  that  the  question  put  to  that  doc- 
tor covered  only  propositions  one,  two,  three, 
four  and  five,  and  on  those  propositions  the  doc- 
tor said  he  was  sane.  Suppose,  Gentlemen  of  the 
Jury,  they  had  put  to  him  the  proposition  num- 
ber six.  They  did  not  dare  to  put  that  to  him!" 

The  doctor's  testimony  is  thus  overcome.  But 
time  and  again  in  such  a  situation  the  plaintiff's 
lawyer  makes  the  mistake  of  objecting  that  the 
doctor's  testimony  does  not  cover  the  sixth  prop- 
osition. "All  right,"  the  defendant's  lawyer 
then  answers,  "Suppose,  doctor,  it  includes  that 
one  also,  then  what  do  you  say?"  And  the  doc- 
tor of  course  says,  "I  still  say  he  was  sane." 

It  has  been  suggested  before  that  it  is  well  to 
know  in  advance  the  nature  of  the  witnesses  who 
are  to  appear  on  the  other  side.  In  criminal 
cases  it  is  the  rule  in  most  places  that  they  have 
a  preliminary  examination.  Ordinarily  the 
names  can  be  obtained  from  the  indictment  but 
generally  the  witnesses  are  examined  before  a 


158  TRIAL  TACTICS. 

magistrate  on  the  preliminary  examination.  In 
defending  an  important  case  it  is  desirable  to 
appear  and  cross-examine  all  witnesses  for  the 
State,  the  prosecution,  because  in  this  way  many 
facts  can  be  learned  from  those  witnesses  which 
are  of  help  afterwards  if  the  case  is  tried  in  the 
trial  court,  in  finding  suitable  jurors,  and  of  help 
also  in  cross-examining  those  same  witnesses  in 
the  trial  court.  By  cross-examining  them  be- 
fore the  justice  the  nature  of  the  witnesses  can 
be  learned  and  how  firm  and  how  truthful  they 
are.  Experiments  can  be  tried  also  in  the  jus- 
tice court;  they  can  be  asked  questions  even  if 
they  turn  out  to  be  harmful  because  later  in  the 
upper  court  the  same  questions  can  be  avoided. 
On  the  other  hand  if  helpful  answers  are  ob- 
tained it  is  safe  to  put  the  same  questions  to  the 
same  witness  in  the  upper  court.  If  the  witness 
there  testifies  differently  or  does  not  answer  as 
he  did  before  the  justice,  the  reporter  or  stenog- 
rapher who  heard  him  testify  in  the  justice 
court  should  be  produced  to  impeach  him  and 
show  that  he  has  sworn  differently  before  the 
justice,  which  will  weaken  that  witness  materi- 
ally and  weaken  the  whole  prosecution. 

Naturally,  on  the  other  hand,  in  defending  a 
criminal  case  it  is  advisable  not  to  put  the  wit- 
nesses on  at  all  before  the  magistrate  because 
this  gives  the  prosecuting  attorney  the  recipro- 


INTBODUCING  THE  EVIDENCE.  159 

cal  advantage  of  cross-examining  them.  Of 
course  if  there  is  an  absolute  certainty  that  a 
client  can  be  cleared  even  before  the  examining 
magistrate  it  is  well  to  clear  him  and  save  him 
from  the  disgrace  of  being  tried  and  lying  in 
jail  and  also  from  the  expense  of  giving  a  bond. 
But  it  is  only  in  a  very  strong  case  that  it  would 
seem  advisable  to  put  in  any  evidence  at  all  for 
the  defense.  As  a  general  rule  it  is  best  to  give 
no  evidence,  to  allow  him  to  be  bound  over  in 
bail  and  then  to  formulate  the  strongest  defense. 
Certainly  it  may  be  a  disgrace  for  a  man  to  be 
bound  over  to  the  Grand  Jury  and  to  be  indicted 
but  for  the  defense  it  is  safer.  It  is  very  much 
as  though  the  defense  were  playing  cards  with 
the  State's  Attorney.  Before  the  justice  the 
defendant's  lawyer  sees  practically  all  the  cards 
that  the  State's  Attorney  holds  but  the  prosecu- 
tion does  not  see  the  cards  that  the  defense  holds. 
Naturally  before  the  trial  jury  the  defendant's 
lawyer  has  that  advantage ;  whereas  if  the  State's 
Attorney  sees  his  adversary's  hand  he  has  an 
equal  advantage.  The  chances  are  nine  hundred 
and  ninety-nine  out  of  a  thousand  anyway  that 
the  justice  will  hold  the  accused  over.  There 
are  very  few  cases  where  the  justice  releases  the 
accused  on  the  preliminary  examination  because 
it  is  the  duty  of  the  examining  magistrate  to 
hold  him  over  if  there  is  probable  cause,  not  if 


160  TEIAL  TACTICS. 

there  is  guilt  beyond  a  reasonable  doubt,  or  a 
preponderance  of  the  evidence,  but  only  probable 
cause.  There  is  probable  cause  where  the  pros- 
ecuting witness  swears  that  the  accused  com- 
mitted certain  offenses  even  if  the  accused 
swears  he  did  not,  because  the  question  who  is 
telling  the  truth  is  for  the  jury  and  not  for  the 
justice  to  decide. 

In  offering  evidence,  if  the  question  which  has 
been  asked  the  witness  is  objected  to  and  the 
Court  sustains  the  objection  then  the  witness  is 
not  allowed  to  answer  that  question.  The  Court 
sustains  the  objection  and  the  lawyer  for  the  side 
which  has  called  the  witness  takes  an  exception, 
but  that  is  not  enough.  It  is  the  general  prac- 
tice in  all  the  jurisdictions  that  have  ever  come 
under  the  writer's  observation  that  when  a  law- 
yer asks  a  question  and  his  opponent  objects, 
and  the  Court  sustains  the  objection,  he  must 
then  go  on  and  indicate  to  the  Court  what  he 
expects  to  prove  from  that  witness  with  refer- 
ence to  that  question:  He  must  indicate  that 
and  get  it  into  the  record ;  the  stenographer  must 
take  it  down,  if  he  has  a  stenographer.  The 
technical  and  accurate  process  is  as  follows  (and 
some  of  the  reviewing  courts  are  very  technical) 
Question  to  the  witness,  objection  by  opposing 
counsel,  objection  sustained,  exception  by  the 
questioner  who  says,  "And  now,  your  Honor,  I 


INTRODUCING  THE  EVIDENCE.  161 

offer  to  prove  by  this  witness,  and  expect  that, 
in  answer  to  the  question  I  have  put,  this  witness 
will  testify  A.  B.  plus  C.  D.  Now  with  my  offer 
of  the  expected  testimony,  if  your  Honor  please, 
I  renew  the  question  in  the  light  of  this  offer." 
Objection  by  opposing  counsel,  objection  sus- 
tained, and  again  exception  by  the  questioner. 
If  there  is  an  absolutely  complete  record  of  this 
sort  so  the  reviewing  court  can  see  that  the  ques- 
tion if  it  had  been  allowed  and  had  been  an- 
swered in  the  manner  that  it  was  expected  to  be 
answered  might  have  produced  the  result  it  was 
expected  to  produce,  if  the  reviewing  court  can 
see  that  with  that  material  in  the  record  the  re- 
sult might  have  been  different  the  case  will  be 
reversed. 

But  if  the  procedure  is  simply  question  to 
the  witness,  objection  by  opposing  counsel,  ob- 
jection sustained  by  the  court  and  exception  by 
questioner  who  drops  the  matter  there  and  goes 
on  with  the  case,  if  the  case  is  lost  and  later 
appealed  it  will  not  be  reversed  because  of  the 
court's  refusal  to  allow  that  question  to  be  an- 
swered. The  reviewing  court  will  say,  "We 
cannot  tell  that  that  made  any  difference.  We 
cannot  tell  simply  from  the  putting  of  the  ques- 
tion and  the  refusal  to  have  it  answered  that 
that  affected  the  case  in  its  entirety ;  we  will  not 
reverse  it  because  it  is  the  duty  of  the  losing 


162  TRIAL  TACTICS. 

party  to  persuade  the  reviewing  court  that  the 
case  in  its  entirety  was  affected  by  the  alleged 
error  of  the  trial  court."  The  reviewing  court 
might  well  say  that  the  question  should  have 
been  answered  and  that  for  the  court  to  refuse  to 
allow  it  to  be  answered  was  error  on  the  part 
of  the  court  but  it  was  error  without  prejudice ; 
it  does  not  appear  that  there  was  any  prejudice 
suffered  by  the  question  not  being  answered  be- 
cause it  does  not  appear  what  the  answer  would 
have  been,  or  might  have  been;  the  lawyer  put- 
ting the  question  has  not  enlightened  the  lower 
court  in  that  regard  and  hence  has  not  enlight- 
ened the  reviewing  court. 

Care  should  be  taken,  as  has  been  said  before, 
that  the  jury  is  not  disappointed  in  the  promise 
of  evidence.  If  they  are  led  to  think  that  some 
important  matter  of  evidence  is  coming,  which 
later  fails  to  come,  they  think  that  the  case  has 
not  been  proved  although  there  may  be  other 
evidence  in  the  case  which  should  be  enough  to 
convince  them.  An  apt  illustration  of  this  oc- 
curred in  a  trial  some  years  ago.  The  pros- 
ecutor stated  that  he  would  prove  that  the 
accused  bought  the  revolver  from  a  merchant, 
whom  he  would  produce  as  a  witness.  He  made 
such  a  point  of  this  that  everybody  was  in  the 
utmost  suspense  when  this  witness  was  called 
and  the  accused  clenched  his  hands  in  dread  as 


INTBODUCING  THE  EVIDENCE.  163 

he  turned  to  face  him.  It  was  a  very  unwise 
thing  to  rest  the  entire  case  on  that  one  proposi- 
tion because  it  might  be  unimportant  whether  he 
had  bought  the  revolver  or  not.  There  might 
have  been  enough  evidence  to  hang  twenty  peo- 
ple regardless  of  that  point  but  a  great  feature 
was  made  of  it  and  when  in  answer  to  the  ques- 
tion "Could  you  say  that  this  is  the  man?"  the 
witness  replied  "I  could  not,"  the  whole  case 
stopped  right  there.  That  was  enough  to  dis- 
appoint at  least  six  of  the  twelve  jurors.  The 
State's  Attorney  should  have  had  the  merchant 
look  at  the  accused  outside  of  court  and  unless 
he  had  then  been  able  to  identify  him,  he  (the 
merchant)  should  not  have  been  called  as  a  wit- 
ness nor  should  any  allusion  to  him  have  been 
made  to  the  jury. 

Sometimes  a  witness  says  he  can  testify  to  a 
certain  matter,  and  later  in  court  fails  to  do  so. 
In  that  event  it  is  the  duty  of  the  prosecutor  to 
tell  the  jury  frankly  that  that  witness  has  been 
deceiving  him,  which  is  permissible.  If  the  wit- 
ness tells  the  prosecutor  for  instance  that  he  can 
identify  the  accused,  saying,  "He  is  the  man 
I  saw  buy  the  revolver" — and  then  when  that 
witness  is  called  on  trial  and  says  he  is  not  the 
man  it  is  the  duty  of  the  prosecutor  to  say,  "Mr. 
Witness,  did  you  not  tell  me  in  my  office  that  he 


164  TRIAL  TACTICS. 

is  the  man?"  and  to  produce  a  witness  to  prove 
that  in  the  office  he  did  so  say. 

In  regard  to  the  order  in  which  the  witnesses 
are  to  be  called  as  a  general  rule  it  is  well,  as  has 
been  said,  to  start  with  the  earliest  facts  and 
bring  them  down  to  date,  like  a  history  or  a 
novel.  This  makes  the  matter  clearer  and 
plainer  to  the  jury  and  they  follow  the  case  more 
easily.  Begin  with  the  earliest  facts  thus: 
"Back  in  1850  there  was  a  family  living  out  in 
the  town  of  Blank  and  that  family  had  a  son 
James.  About  1864  he  went  to  the  Civil  War 
and  he  was  not  heard  from  again  until  1872  when 
he  was  found  keeping  a  tailor  shop  in  Boston," 
and  so  on  right  down  to  date.  The  jury  follows 
everything  and  the  witnesses  are  called  in  that 
order  to  establish  the  facts.  But  this  general 
rule  admits  of  a  great  deal  of  modification.  At 
times  witnesses  are  stupid  and  cast  more  or  less 
ridicule  upon  themselves,  on  the  direct  and  cross- 
examination  and  it  is  not  well  to  end  a  case  with 
a  weak  witness.  The  last  impression  is  the 
strongest,  so  it  is  well  to  keep  the  clearest, 
strongest  and  best  evidence  until  the  last,  even  if 
this  slightly  shifts  the  chronological  order.  The 
witness  who  makes  the  strongest  sympathetic 
appeal  is  often  left  until  the  last,  the  widow  in  a 
suit  by  the  administrator  if  her  husband  was 
killed  or  the  afflicted  mother  whose  son  perished 


INTRODUCING  THE  EVIDENCE.  165 

in  an  accident.  There  is  not  the  slightest  doutit 
that  the  mere  presence  on  the  witness  stand  of 
the  afflicted  relative,  even  if  her  testimony  be 
upon  a  comparatively  minor  question,  aids  in 
drawing  the  kindly  feelings  of  the  jury  towards 
that  side  of  the  case.  Those  things  must  all  be 
borne  in  mind  in  arranging  the  work. 

Sometimes  the  witnesses  must  be  taken  as  they 
can  be  gotten;  possibly  they  are  not  always  at 
hand.  If  there  are  a  good  many  depositions  to 
be  read  they  should  not  be  read  first  but  should 
be  saved  for  emergencies  if  at  any  time  the 
witnesses  give  out.  Lawyers  sometimes  make 
the  mistake  of  reading  all  the  depositions  and 
then  run  out  of  witnesses  before  adjourning 
time  and  their  other  witnesses  not  having  ar- 
rived they  have  to  take  a  non-suit.  All  these  are 
matters  of  detail  but  they  are  important  at 
times. 

It  is  obviously  highly  important  in  offering 
evidence  to  see  that  the  evidence  is  consistent  and 
to  know  what  it  is  necessary  to  prove,  but  it  is 
surprising  how  many  lawyers  fail  in  both 
regards. 

The  issue  involved  must  be  known,  and  the 
nature  of  the  proof  and  how  much  evidence  is 
needed  to  establish  it.  In  other  words  the  issue, 
the  burden  of  proof  and  the  quantum  of  proof. 
The  burden  of  proof  is  the  necessity  to  prove; 


166  TEIAL  TACTICS. 

the  quantum  of  proof,  the  weight  or  mass  of 
proof  necessary  to  establish  the  burden.  The 
quantum  of  proof  varies  on  different  issues;  in 
some  it  requires  the  preponderance  of  evidence, 
in  others  satisfactory  evidence,  which  is  a  little 
more  than  preponderance,  and  in  others  evidence 
beyond  a  reasonable  doubt,  which  is  the  greatest 
amount  of  evidence  demanded.  Sometimes  the 
plaintiff  must  prove  the  proposition ;  sometimes 
he  has  nothing  or  little  to  prove  and  the  defend- 
ant must  do  the  proving.  These  questions  must 
be  known  when  preparing  a  case. 

Suppose  the  plaintiff  sues  upon  a  note;  the 
plaintiff  does  not  have  to  prove  who  signed  the 
note  unless  the  defendant,  in  some  jurisdiction 
by  pleas  and  in  other  jurisdictions  by  an  affi- 
davit, puts  the  signature  into  issue.  In  this 
case  the  plaintiff  has  to  prove  the  signature.  It 
would  be  absurd,  if  that  issue  were  not  upon 
the  plaintiff,  for  the  plaintiff  to  commence  prov- 
ing the  signature  as  though  he  were  afraid  of 
his  own  note.  If  some  of  his  witnesses  should 
be  a  little  weak  the  jury  might  become  suspicious 
of  the  note  and  if  there  were  some  other  defense 
in  the  case  they  would  decide  for  the  other  de- 
fense because  of  their  impression  that  there  was 
something  wrong  about  the  note.  If  the  defend- 
ant did  not  put  the  signature  into  issue  it  cer- 


INTRODUCING  THE  EVIDENCE.  167 

tainly  would  be  a  great  mistake  for  the  plaintiff 
himself  to  do  it. 

It  is  not  always  easy  to  determine  what  the 
issues  are.  For  instance  in  some  cases  sanity 
or  insanity  may  be  the  issue,  as  in  the  insurance 
case  which  has  been  cited  before.  If  the  plain- 
tiff sues  on  a  contract  and  the  defendant  wants 
to  avoid  the  contract  on  the  ground  that  the 
defendant  was  insane  then  the  burden  is  on  the 
defendant.  If  the  plaintiff  sues  on  an  insur- 
ance policy  and  the  defendant  claims  the  de- 
ceased killed  himself,  which  is  admitted,  but 
the  plaintiff  claims  that  he  was  not  responsible 
at  the  time  because  he  was  insane,  then  the  bur- 
den is  on  the  plaintiff. 

Burden  of  proof  must  not  be  confused  with 
presumption  of  proof.  Sanity  for  instance  is 
supposed  to  exist.  All  human  beings  are  as- 
sumed to  be  sane,  though  it  is  a  violent  assump- 
tion in  some  cases,  and  hence  in  the  absence  of 
any  evidence  at  all  the  individual  in  question 
is  assumed  to  be  sane  and  evidence  is  required  to 
show  that  he  was  not  sane.  Just  as  in  a  criminal 
case  the  State  must  prove  that  the  accused  did 
the  act  and  that  the  accused  was  capable  of  doing 
the  act  or  else  there  is  no  crime,  while  the  ac- 
cused is  assumed  to  be  innocent  until  he  is  proved 
to  be  guilty,  so  sanity  is  assumed  to  exist  until 
it  is  overthrown  by  evidence. 


168  TKIAL  TACTICS. 

One  of  the  most  interesting  questions  of  issue 
and  the  fixing  of  the  burden  arises  under  the 
principle  of  res  ipsa  loquitur,  which  applies 
where  the  affair  tells  its  own  story  and  no  other 
evidence  is  necessary.  Thus  if  a  man  walks 
along  a  street  and  a  large  bundle  falls  out  of 
the  window  of  the  fourth  floor  of  a  store  and  hits 
him  on  the  head  and  injures  him,  all  that  he  must 
prove  is  that  he  was  walking  along  the  street 
and  that  the  bundle  fell  out  and  hit  him.  After 
that  the  affair  speaks  for  itself;  it  tells  its  own 
story,  that  somebody  upstairs  neglected  some- 
thing in  allowing  that  bundle  to  roll  out  of  the 
window  and  must  be  made  to  pay  the  damages. 
The  assumption  is  that  the  matter  is  entirely 
under  the  control  of  the  owner  of  the  store,  which 
matter,  if  properly  conducted,  would  ordina- 
rily not  injure  people  and  as  this  matter  has 
injured  somebody  it  has  therefore  not  been  pro- 
perly conducted.  So  the  burden  is  on  the 
defendant  to  prove  such  matters  as  indicate  that 
he  properly  conducted  his  business  and  that 
nevertheless  the  injury  happened.  For  instance 
he  will  say  that  he  had  merchandise  up  there 
pressed  against  the  window,  which  is  true;  that 
he  needed  the  space,  which  is  true;  that  across 
the  window  he  had  put  solid  iron  bars  two  inches 
square  that  would  hold  thousands  of  pounds; 
that  he  bought  these  bars  from  a  foundry  com- 


INTRODUCING  THE  EVIDENCE.  169 

pany  which  made  the  best  bars  in  the  United 
States  and  paid  the  highest  price  for  them;  but 
that  suddenly  and  without  warning  one  of  the 
bars  broke  and  his  goods  fell  out  of  the  window 
and  caused  the  injury;  that  he  went  then  and 
looked  to  the  bar  which  had  broken  and  found 
that  externally  it  was  perfectly  sound  but  inter- 
nally there  was  a  defect  in  the  casting  and  that 
the  makers  of  the  bar  would  say  that  the  best 
casting  in  the  world  might  have  that  defect ;  they 
cannot  look  into  it  and  they  have  to  take  that 
chance. 

It  is  barely  possible  that  in  such  a  case  the 
f  oundrymen  might  be  liable  but  the  owner  of  the 
store  has  neglected  nothing ;  he  went  to  the  best 
foundry,  paid  the  highest  price,  bought  the  best 
article  and  put  a  light  weight  against  it  and  still 
it  broke.  Under  these  circumstances  the  mer- 
chant would  be  released ;  he  would  not  be  liable. 

In  this  way  the  doctrine  of  res  ipsa  loquitur 
establishes  a  case  until  it  is  overcome  by  evidence 
which  thus  overthrows  it.  This  principle  is 
very  frequently  applied  in  railroad  matters.  In 
a  typical  case  the  plaintiff  was  a  passenger  on 
a  car  which  ran  off  the  track,  fell  over  and  in- 
jured him.  He  need  prove  no  more.  The  doc- 
trine is  that  a  car  properly  managed  will  not 
ordinarily  fall  over;  hence  the  inference  arises 
that  the  car  was  not  properly  managed. 


170  TKIAL  TACTICS. 

This  applies  where  the  entire  operation  is  in 
the  hands  of  the  defendant  and  so  if  one  car  be- 
longing to  a  railway  company  crashes  into 
another  car  belonging  to  the  same  company  the 
passengers  recover  because  of  this  doctrine, 
unless  the  railway  company  can  show  that  the 
occurrence  took  place  from  some  reason  beyond 
their  control ;  that  is  beyond  the  exercise  of  the 
utmost  care  on  their  part  consistent  with  the 
practical  conduct  of  the  road ;  for  instance  that 
they  examined  the  brakes,  wheels  and  everything 
but  to  their  surprise  one  of  them  broke  by  rea- 
son of  an  interior  defect  and  thereby  caused  the 
accident.  In  the  case  however  of  a  car  coming 
from  one  direction  and  a  team  coming  in  the 
other  direction  and  injuring  a  passenger,  it  is 
held  that  it  may  just  as  well  be  said  that  the  man 
with  the  team  drove  it  carelessly  toward  the  car 
as  to  say  that  the  man  controlling  the  street  car 
drove  it  carelessly  past  the  wagon.  It  is  not  self 
evident  which  one  was  to  blame  and  hence  this 
doctrine  does  not  apply. 

In  bringing  suit  for  the  injured  man  against 
the  railroad  company  where  the  car  ran  off  the 
track  and  the  passenger  was  injured  the  case  will 
be  brought  like  this.  The  passenger  complains 
that  while  he  was  a  passenger  the  company  negli- 
gently caused  the  car  to  run  off  the  track 
and  injured  him.  It  will  be  proved  that  he  was 


INTKODUCING  THE  EVIDENCE.  171 

a  passenger  and  that  the  car  did  thus  and  so 
broke  his  shoulder  and  he  will  win  unless  the 
company  makes  satisfactory  explanation.  The 
plaintiff  may  then  attempt  to  say,  "But  there 
was  something  else ;  the  car  was  coming  around 
a  corner  too  swiftly,"  but  the  plaintiff  cannot 
bring  that  in  because  it  is  not  rebuttal. 

There  is  where  the  evidence  must  be  watched. 
The  plaintiff  should  have  put  in  that  line  of  evi- 
dence when  he  opened  his  case.  If  the  plaintiff 
narrows  his  case  to  the  mere  application  of  the 
doctrine  of  res  ipsa  loquitur  and  the  defendant 
overcomes  that  then  the  plaintiff  has  lost.  The 
plaintiff  can  rebut  then  only  upon  the  point 
offered  by  the  defense;  for  instance  if  the  de- 
fense goes  on  the  theory  that  the  wheel  broke, 
that  they  had  bought  the  wheel  from  the  best 
maker,  and  so  on,  the  plaintiff  can  rebut  and 
show  that  instead  of  buying  that  wheel  from  the 
best  maker,  etc.,  it  was  a  poor  wheel,  a  discarded 
wheel  which  the  company  bought  from  a  scrap 
pile  and  put  on  the  car.  This  would  be  rebuttal 
of  that  line  of  defense  and  would  be  allowable, 
but  under  those  issues  that  is  all  that  would  be 
allowable. 

So  great  attention  is  necessary  to  show  just 
what  the  issue  is  in  the  case  and  just  exactly  how 
to  prove  it. 

It  may  be  that  under  the  general  count  of  the 


172  TRIAL  TACTICS. 

declaration  that  they  negligently  ran  that  train, 
evidence  can  be  introduced  as  to  the  running  of 
the  train  and  of  some  circumstances  attending 
upon  that  without  a  special  count  in  the  declara- 
tion. For  instance  it  has  been  held  in  some 
jurisdictions  that  under  that  general  count  may 
be  introduced  the  fact  that  the  track  was  slip- 
pery from  rain,  and  that  the  engine  or  grip  car 
had  no  sand  and  did  not  sand  the  track,  although 
these  specific  facts  were  not  specially  charged 
in  the  declaration.  That  was  held  to  be  one  of 
the  circumstances  under  which  the  car  was  run, 
indicating  that  it  was  negligently  run.  The 
question  however  would  be  doubtful  in  many 
instances  and  in  some  jurisdictions  evidence  of 
that  kind  would  not  be  permitted  to  be  offered. 
Certainly  it  would  not  be  allowed  to  offer  evi- 
dence of  the  special  violation  of  a  special  law  in 
the  general  count  in  the  declaration,  as  for  in- 
stance that  the  company  had  no  flagman 
stationed  there  or  that  the  company  did  not 
comply  with  the  ordinance  with  reference  to 
railway  gates  and  such  matters.  There  would 
have  to  be  a  count  based  on  that. 

So  the  proof  under  the  doctrine  of  res  ipsa 
loquitur  is  quite  narrow.  In  the  Illinois  Court 
now  it  is  narrower  than  ever  before  for  they 
have  quite  recently — and  in  the  writer's  opinion 
quite  erroneously — reversed  the  decision  of  the 


INTBODUCING  THE  EVIDENCE.  173 

lower  court  and  the  Appellate  Court.  The  per- 
son injured  was  standing  on  a  public  highway 
which  was  crossed  by  a  railway  track.  A  rail- 
way train  went  by  with  cars  loaded  with  tim- 
ber. The  timber  had  turned  on  one  of  the  cars 
so  that  one  of  the  pieces  was  at  right  angles 
to  the  car  and  projected  a  considerable  distance. 
The  man  at  the  crossing  was  struck  by  the  end 
of  the  timber.  The  Supreme  Court  held  that 
it  was  incumbent  on  the  plaintiff  to  prove  how 
the  timber  came  to  turn  and  to  project  from  the 
car. 

Many  elements  are  assumed  to  exist  until 
proved  to  the  contrary.  Sanity  is  supposed  to 
exist;  sobriety  is  supposed  to  exist;  carefulness 
is  supposed  to  exist  in  regard  to  parties  who  are 
otherwise  deprived  of  their  proof.  An  illustra- 
tion of  the  latter  assumption  may  be  found  in 
this  case:  A  man  was  found  dead;  nobody  had 
seen  how  it  happened;  he  evidently  had  been 
killed  by  an  engine  or  a  car  on  the  railroad; 
there  were  no  witnesses ;  there  was  evidence  that 
he  usually  was  careful  and  hence  the  court  held 
it  might  be  presumed  that  at  the  time  being  he 
was  also  careful.  However  care  must  usually 
be  proved  affirmatively;  that  is,  all  the  circum- 
stances must  be  related  to  the  jury  by  those  ac- 
quainted with  them  and  the  jury  may  infer 
care  or  lack  of  care. 


174  TRIAL  TACTICS. 

The  various  kinds  of  cases  must  be  carefully 
studied  to  find  out  where  the  burden  of  proof 
is  and  the  manner  of  proof.  Suppose  for  in- 
stance a  client  has  sold  the  defendant  a  great 
many  articles  of  merchandise.  His  lawyer  must 
prove  that  the  contract  was  made  and  that  the 
articles  were  delivered  and  what  the  market  or 
agreed  price  of  such  articles  was,  which  is  not 
always  easy.  If  the  client  has  a  large  establish- 
ment, employing  thousands  of  persons,  salesmen 
and  clerks  and  shipping  clerks  it  is  often  diffi- 
cult to  prove  a  sale  and  delivery  where  the  sys- 
tem of  jurisprudence  requires  it  to  be  proved. 
The  better  way  would  be  to  require  the  de- 
fendant to  deny  under  oath  that  the  goods  had 
been  delivered.  In  most  cases  he  could  not  deny 
it  but  under  some  systems  he  is  allowed  to  plead 
the  general  issue  and  under  it  deny  that  he  got 
the  goods.  Then  the  plaintiff  must  prove  that 
he  did  get  them  which  is  very  difficult  and  it 
would  be  well  for  the  lawyer  to  instruct  his  client 
how  to  make  proof  of  that.  One  of  the  ways  is 
for  the  client  to  send  a  statement  to  the  defend- 
ant of  the  items  and  amounts  when  the  goods 
are  sent  or  soon  after.  The  defendant  at  that 
time  probably  admits  the  justice  of  the  state- 
ment, or  if  he  denies  it  he  will  deny  only  one  or 
two  particular  items.  It  has  been  held  that  this 
is  sufficient  proof ;  the  sending  of  the  statement 


INTBODUCING  THE  EVIDENCE.  175 

and  the  receipt  of  it  and  the  acquiescence  there- 
in or  failure  to  write  back  that  he  did  not  receive 
the  goods. 

Also  it  is  necessary  to  learn  how  to  prove  book 
entries.  The  entries  may  be  wrong  or  the  man 
who  made  the  entries  may  be  dead.  The  statute 
must  be  consulted  in  the  particular  jurisdiction 
to  see  the  manner  of  proving  such  entries.  The 
general  principles  however  underlying  this  are 
about  the  same  everywhere.  It  must  be  proved 
that  the  books  were  kept  in  the  usual  course  of 
business,  that  they  were  honestly  and  correctly 
kept  and  the  inability  to  produce  the  man  who 
made  the  entries,  either  on  account  of  his  death 
or  for  some  other  cause  must  be  proved.  And 
the  original  entries  must  be  proved.  It  is  the 
original  entries  that  count  not  the  subsequent 
entries  and  it  is  very  difficult  sometimes  to  know 
just  what  are  the  original  entries.  Suppose  in 
a  large  lumber  concern  a  man  goes  out  into  the 
yard  and  makes  a  small  list  of  items  on  a  slip  of 
paper  which  he  gives  to  the  book-keeper  who 
enters  the  items  in  a  day-book  and  later  tran- 
scribes them  into  the  ledger.  The  ledger  is  not 
a  book  of  original  entry  at  all.  Back  of  the 
ledger  is  this  journal  or  day-book  which  many 
deem  to  be  the  book  of  original  entry  while 
others  hold  that  the  little  slips  which  the  man 
brought  in  from  the  yard  are  the  original  entry. 


176  TRIAL  TACTICS. 

The  journal  is  simply  a  copy  of  those  slips. 
There  is  a  great  deal  of  conflicting  authority  on 
these  matters  and  it  must  be  examined  very 
carefully. 

Another  difficult  class  of  cases  is  mechanic's 
lien  cases.  A  great  deal  of  law  must  be  exam- 
ined there  concerning  how  to  prove  for  instance 
that  the  client's  lumber  went  into  a  certain  build- 
ing. 

It  must  be  learned  exactly  what  kind  of  evi- 
dence is  admissible  and  what  is  not.  The  dis- 
tinction must  be  noted  between  hearsay  evidence 
and  other  evidence,  evidence  relative  to  the  res 
gestae ;  evidence  which  is  the  best  evidence  and 
that  which  is  secondary  evidence.  How  to 
bring  evidence  into  court  must  be  learned; 
whether  by  notice  to  the  opponent  to  produce 
a  document  or  if  it  is  in  the  possession  of  a 
witness  by  a  subpoena  duces  tecum.  If  the 
opponent  has  the  document,  notice  must  be 
served  on  him  to  produce  it  in  court.  If  he  fails 
so  to  do  the  lawyer  has  the  right  to  have  any 
of  the  witnesses  who  possess  a  copy  produce  it 
or  if  the  witnesses  have  no  copy  but  know  what 
was  in  the  original  the  witnesses  may  testify  as 
to  the  contents  thereof.  He  has  made  a  rea- 
sonable endeavor  to  bring  the  document  into 
court,  and  if  it  is  not  brought  in  he  has  a  right 


INTRODUCING  THE  EVIDENCE.  177 

to  give  secondary  evidence.  If  the  document  in 
question  is  not  in  the  control  of  the  opponent  in 
the  litigation  but  is  in  the  possession  of  a  third 
person,  the  third  person  may  be  a  witness  the 
same  as  anyone  else,  and  if  he  is  wanted  in  court 
as  a  witness  to  produce  the  document  he  must 
be  subpoenaed  under  a  subpoena  duces  tecum. 
Then  he  is  required  to  come  into  court  and  bring 
the  documents.  If  he  is  in  the  jurisdiction  and 
does  not  appear  he  may  be  compelled  to  come  by 
attachment  and  a  continuance  must  be  obtained 
until  he  does  come.  But  if  he  is  out  of  the  juris- 
diction the  court  cannot  compel  his  attendance 
and  fhat  is  ground  for  secondary  evidence. 
Some  courts  hold  that  if  the  witness  is  outside 
of  the  jurisdiction  an  attempt  must  be  made  to 
take  his  deposition.  Other  courts  hold  that  it  is 
not  necessary  to  make  the  effort  in  such  cases  at 
all ;  the  mere  fact  that  he  is  beyond  the  power  of 
the  court  allows  secondary  evidence  to  be  intro- 
duced. 

Every  step  should  be  taken  in  time  and  fol- 
lowed with  diligence  so  that  when  the  case  is 
announced  for  trial,  if  it  should  happen  that  the 
witnesses  are  not  present  it  can  be  shown  that 
it  was  through  no  fault  of  the  lawyer.  In  that 
way  the  basis  for  a  continuance  will  be  laid  and 
the  case  will  be  heard  later. 


CHAPTER  XI. 

EXPERT  EVIDENCE. 

IT  is  not  well  to  have  too  many  experts  on  a 
side.  Sometimes  it  is  not  well  to  have  more 
than  one.  Sometimes  one  expert  is  better 
than  two  because  occasionally  although  in  their 
general  conclusions  they  agree  in  favor  of  a  cli- 
ent yet  they  give  such  different  reasons  for  their 
opinions  that  they  practically  contradict  each 
other.  Suppose  that  two  experts  testify  that  a 
certain  party  involved  in  a  transaction  was  not 
sane  at  the  time.  On  cross-examination  one 
expert  will  give  his  reasons  for  deeming  the  man 
insane  as  a,  b,  c,  while  the  other  expert  on  cross- 
examination  gives  his  reasons  as  d,  e,  and  f, 
quite  different  from  those  the  first  expert  gave. 
The  opponent  will  not  fail  to  make  the  argument 
that  neither  opinion  amounts  to  anything  be- 
cause if  a,  b,  c,  are  good  reasons  on  which  to 
found  insanity  it  is  very  singular  that  the  second 
expert  did  not  put  them  down  as  his  reasons ;  the 
fact  that  the  second  witness  did  not  give  them 
would  indicate  that  they  are  not  good  reasons; 
likewise  if  d,  e,  and  f,  are  good  reasons  it  is 
singular  that  the  first  expert  did  not  give  them. 

178 


EXPERT  EVIDENCE.  179 

Therefore,  both  experts  base  their  opinions  on 
reasons  which  are  not  sound.  In  other  words 
the  witnesses  defeat  one  another  and  it  fre- 
quently happens  that  the  more  experts  there  are 
on  the  same  side  of  the  case  the  weaker  the  case 
gets  because  as  witnesses  they  are  as  a  class  opin- 
ionated and  will  persist  in  their  individual  rea- 
sons although  they  reach  the  same  conclusions. 

On  the  other  hand  it  is  well  to  have  a  number 
of  witnesses,  provided  they  are  consistent  and 
can  stand  the  test  of  inquiry,  because  if  an 
attempt  is  made  to  establish  a  proposition  with 
only  one  expert  and  the  opponent  has  six  who 
are  consistent  and  make  a  good  impression, 
naturally  the  jury  will  find  with  the  six  rather 
than  with  the  one.  To  some  extent  they  are 
compelled  to  do  so. 

The  forms  of  questions  to  be  put  to  the  expert 
are  rather  difficult  to  determine.  They  vary  so 
much  in  different  jurisdictions  that  the  law  must 
be  looked  up  wherever  a  man  is  practicing  and 
it  must  be  verified  from  time  to  time  because  the 
courts  are  shifting. 

But  this  much  is  safe  in  any  jurisdiction ;  the 
medical  witness  after  he  has  stated  that  he  is 
experienced,  has  attended  college,  and  has  had 
so  many  years'  experience,  can  be  asked  directly 
what  in  his  judgment  was  the  result  of  the  acci- 
dent; that  is,  what  in  his  judgment  was  the  re- 


180  TRIAL  TACTICS. 

suit  of  the  blow,  describing  it,  if  the  man  did  re- 
ceive such  a  blow.  In  this  way  he  is  giving  his 
positive  assertion  that  the  blow,  as  such,  resulted 
in  the  present  condition  of  the  plaintiff  what- 
ever his  condition  is.  The  doctor  has  a  perfect 
right  to  give  that  as  a  fact  because  he  gives  it 
as  a  fact  based  on  his  opinion  and  on  his  experi- 
ence and  knowledge  as  a  physician.  He  has  a 
right  to  answer  that,  because  it  is  based  on  his 
judgment  as  a  physician  but  all  things  which  are 
based  simply  upon  deductions  of  knowledge  and 
observation  are  to  some  extent  a  conclusion,  a 
point  that  has  been  explained  before. 

No  forms  that  have  been  given  thus  far  can 
be  followed  unvaryingly  but  they  must  be  adap- 
ted to  the  particular  case.  Great  care  must  be 
exercised  in  preparing  cases  to  get  these  ques- 
tions just  right.  Some  of  the  best  results  have 
been  made  worthless  by  a  slight  inaccuracy  in 
the  question.  A  judgment  for  $15,000  was 
reversed  recently  simply  because  of  a  slight 
error  in  the  wording  of  a  question  which  prob- 
ably did  not  affect  the  jury  in  the  least  but  it 
was  deemed  a  flaw  in  the  record. 

There  are  some  instances  where  it  would  be 
a  proper  question  to  ask  the  doctor  to  state 
whether  or  not  in  his  opinion  or  in  his  judgment 
as  an  experienced  physician  or  surgeon  the 
present  condition  of  the  plaintiff  resulted  from 


EXPERT  EVIDENCE.  181 

the  above  described  blow.  This  would  apply  for 
instance  in  a  case  where  there  is  no  contradic- 
tion as  to  the  nature  of  the  blow,  or  of  the  state- 
ment that  nothing  else  happened  to  the  man.  In 
other  cases  it  might  be  denied  that  any  blow 
happened  at  all  or  it  might  be  argued  that  some- 
thing else  affected  the  man.  There  the  ques- 
tion in  the  form  above  would  not  be  allowed. 
All  the  contingencies  have  to  be  taken  into 
account  before  the  question  is  formulated. 

When  experts  are  put  in  they  should  be  given 
to  understand  that  they  should  make  themselves 
plain  to  the  jury.  In  a  recent  case  a  physician 
was  called  to  give  evidence  in  regard  to  a  cer- 
tain injury  and  the  testimony  of  the  physician 
was  as  follows:  "Anterior  to  the  right  parietal 
eminence,  running  parallel  with  the  coronary 
suture  into  the  squamous  portion  of  the  tem- 
poral bone,  there  is  a  fracture  of  the  bone  as 
long  and  as  wide  as  the  finger.  Its  edges  run 
parallel  to  each  other  and  are  slightly  arched 
with  the  convexity  posterior;  the  anterior  is 
sharp,  the  posterior  depressed.  On  the  inner 
surface  of  the  skull  the  vitreous  table  is  de- 
tached and  the  dura  lacerated.  In  addition 
there  are  found  between  the  latter  and  the  inter- 
nal meninges  a  thick  layer  of  blood  coagula." 
It  appeared  that  the  subject  had  been  kicked  in 
the  head  by  a  horse.  To  put  it  to  the  jury  in 


182  TEIAL  TACTICS. 

that  way  was  not  only  meaningless  to  the  jurors 
but  it  perhaps  brought  ridicule  on  the  witness 
who  employed  the  stilted  phraseology.  The 
expert  must  use  plain  English  to  the  jury.  If 
he  means  that  the  man  was  kicked  in  the  head 
by  a  horse  at  the  right  temporal  bone  he  can  say, 
"The  man  was  kicked  in  the  head  just  about 
half  an  inch  back  of  the  outer  corner  of  the  right 
eye,  between  that  and  the  ear,  in  what  we  physi- 
cians call  the  temporal  bone."  The  jury  can 
understand  that.  It  is  well  to  describe  a  thing 
if  possible  in  ordinary  language  and  also  in 
medical  language ;  to  describe  it  in  the  ordinary 
language  to  the  jury  so  that  the  jury  will  under- 
stand it  and  in  medical  terms  for  the  sake  of  the 
record.  Suppose  some  of  the  medical  witnesses 
have  been  on  the  stand,  have  described  the  injury 
and  have  left  the  court  room  and  afterwards  the 
medical  expert  is  brought  in  and  is  asked  for  his 
opinion  on  the  case.  He  reads  or  has  someone 
give  him  the  testimony  of  the  other  medical 
witnesses  and  if  they  gave  their  testimony  in 
medical  terms  the  expert  can  deal  with  it  under- 
standingly  because  anatomy  is  as  exact  as  the 
geography  of  a  country  or  city.  One  medical 
witness  used  for  instance  the  terms,  "  Anterior 
to  the  right  parietal  eminence,"  another  medical 
witness  coming  into  the  court  room  six  days  later 
knows  exactly  what  is  meant  because  he  can 


EXPERT  EVIDENCE.  183 

locate  perhaps  within  a  tenth  of  an  inch  where 
the  pressure  took  place  on  the  skull.  The  exact 
location  may  be  very  important  because  if  the 
skull  is  depressed  at  one  point  it  affects  certain 
nerves  and  may  have  certain  results,  paralysis 
of  certain  organs  or  members,  or  thought  func- 
tions, whereas  if  it  is  a  trifle  removed,  entirely 
different  symptoms  and  entirely  different  results 
may  be  expected.  So  for  the  sake  of  making 
a  record  and  for  carrying  on  the  investigation 
accurately  in  the  future  stages  it  is  highly  im- 
portant that  the  medical  witnesses  deal  with 
precision  with  the  medical  terms  no  matter  how 
long  they  are.  However  they  should  avoid  the 
appearance  of  wishing  to  display  their  knowl- 
edge and  avoid  giving  the  impression  that  they 
are  dealing  in  matters  too  learned  for  the  jury. 
A  physician  in  a  recent  case  said  "levator  labii 
superioris  et  alique  nasi,"  which  in  plain  Eng- 
lish means  a  small  muscle  which  tends  to  raise 
the  upper  lip  under  the  base  of  the  nose.  To  the 
ordinary  juror  it  would  be  better  to  say,  "This 
small  muscle,  which  raises  the  upper  lip  was  the 
one  which  was  cut  or  affected,"  though  it  might 
be  necessary  to  give  also  in  accurate  medical 
phraseology,  the  technical  name  of  that  muscle 
in  order  that  it  could  be  definitely  described  to 
later  witnesses.  This  may  be  done  in  such  a 
manner  that  the  jury  will  understand  the  rea- 


184  TRIAL  TACTICS. 

son;  will  understand  that  these. names  are  used 
to  insure  accuracy,  not  to  display  a  great  amount 
of  learning. 

Where  questions  of  opinion  figure,  the  lawyer 
must  see  that  his  witness  has  a  tangible  reason 
on  which  he  bases  his  opinion.  A  railroad  com- 
pany for  instance  takes  the  client's  real  estate; 
he  is  entitled  to  recover  its  value  and  a  witness 
is  called  to  testify  to  its  value.  The  witness's 
valuation  has  weight  simply  in  accordance  with 
his  ability  to  give  a  convincing  reason  on  which 
it  is  founded.  If  other  real  estate  similarly 
situated  and  in  the  same  locality  for  instance 
has  recently  found  a  ready  market  at  a  certain 
figure,  that  would  be  a  good  reason  to  infer  that 
the  real  estate  in  question  is  worth  the  same 
amount  of  money. 

The  practice  in  this  respect  differs  in  differ- 
ent jurisdictions.  In  some  when  a  witness  is 
offered  he  is  confined  to  stating  the  value.  The 
opponent  then  cross-examines  him  and  the  wit- 
ness should  be  able  to  sustain  himself  on  cross- 
examination  and  to  give  reasons  to  confirm  the 
estimate  of  value  which  he  gave.  The  lawyer 
who  produces  the  witness  is  not  allowed  to  ask 
him  why  he  finds  that  value.  In  other  jurisdic- 
tions the  lawyer  is  allowed  to  ask  him  what  in 
his  opinion  the  value  is  and  also  allowed  to  ask 
him  why  he  reaches  that  opinion.  It  will  be 


EXPERT  EVIDENCE.  185 

readily  seen  that  if  it  is  permitted  to  ask  him 
why  he  reaches  that  opinion  it  should  be  done, 
because  if  he  gives  simply  his  judgment  of  the 
value  and  the  opponent  does  not  cross-examine 
him  and  if  the  opponent  then  comes  on  with  his 
witnesses  who  give  their  opinions  of  the  value 
and  give  also  strong,  sound  reasons  for  their 
belief,  the  opponent  has  the  advantage.  His 
witnesses  will  weigh  more  with  the  jury.  So 
where  it  is  allowable  for  a  witness  to  give  not 
only  his  opinion  but  also  the  reason  for  it  he 
should  be  called  upon  to  do  so. 

Concerning  medical  witnesses  the  same  thing 
may  be  said.  They  give  their  opinions  and  they 
should  be  asked  to  give  reasons  for  the  faith  that 
is  within  them  based  upon  experience,  their  ob- 
servation of  similar  cases  and  in  some  States 
upon  their  learning  from  the  books  of  their  pro- 
fession, although  in  other  States  they  are  not 
allowed  to  give  their  learning  from  the  books 
at  all  and  are  allowed  to  give  only  their  own 
experience;  the  results  that  they  as  physicians 
have  obtained  or  noted,  irrespective  of  what  the 
writers  of  books  have  said  in  regard  to  the  mat- 
ter. 

Again  in  regard  to  the  testimony  of  experts 
on  handwriting  the  practice  differs.  Whether 
a  note  is  genuine  or  a  forgery,  whether  a  will  is 
genuine  or  a  forgery,  whether  contracts  are 


186  TEIAL  TACTICS. 

genuine  or  forged,  whether  writings  wrere  made 
by  the  party  charged  or,  if  the  signature  is  his 
whether  there  have  been  some  changes  in  the  text 
over  the  signature — all  these  things  are  fre- 
quently the  subject  of  expert  testimony  and 
various  methods  are  adopted.  For  example  in 
a  contest  in  regard  to  the  validity  of  a  signa- 
ture to  a  note  a  comparison  may  be  allowed  be- 
tween that  and  other  signatures  of  the  same 
party;  but  in  some  jurisdictions  the  other  sig- 
natures have  to  be  first  admitted  to  be  genuine 
because  if  the  other  signatures  are  themselves 
disputed  there  will  have  to  be  another  trial  on 
them,  and  if  they  are  again  disputed  and  some- 
one else  has  some  other  signature  to  be  com- 
pared, another  comparison  has  to  be  made. 
So  a  chain  of  links  would  be  formed  each  one 
dependent  on  the  other.  The  theories  differ  in 
regard  to  what  extent  and  under  what  circum- 
stances the  disputed  signatures  can  be  aided  by 
comparing  with  other  signatures  made  or 
claimed  to  have  been  made  by  the  person  charged 
with  having  written  the  signature  in  dispute. 


CHAPTER  XII. 

THE   CROSS-EXAMINATION. 

THE  cross-examination  of  witnesses  is  per- 
haps the  most  difficult  part  of  a  lawyer's 
duty — so    difficult    that    it    is    doubtful 
whether  any  rules  can  be  given  telling  what  to 
do  or  what  not  to  do  with  reference  to  it.    There 
are  however  some  things  upon  which  lawyers 
agree  and  a  few  of  them  may  be  suggested. 

The  first  observation  often  made  about  cross- 
examination  is  much  like  Punch's  famous  advice 
to  one  contemplating  matrimony — don't.  That 
is  one  way  of  solving  the  difficulty  and  where 
there  is  no  other  it  is  a  good  way ;  at  all  events  it 
is  better  than  making  a  misguided  attempt  that 
ends  disastrously.  To  experiment  with  the  sub- 
ject is  very  much  like  playing  with  fire-arms. 
It  is  better  not  to  touch  them  unless  they  are 
thoroughly  understood  because  they  are  very 
apt  to  injure  the  one  who  holds  them  quite  as 
much  as  anyone  else.  Still  by  the  same  token 
that  the  poor  cross-examiner  does  a  great  deal 
of  mischief  at  times,  a  good  cross-examiner  may 
do  a  wonderful  amount  of  good  to  his  side  of  the 

187 


188  TRIAL  TACTICS. 

case.  Hence  it  is  well  to  know  something  about 
the  subject. 

One  of  the  first  admonitions  to  give  is  that 
when  a  cross-examiner  happens  to  bring  in  some- 
th^ng  that  helps  him  he  should  stop  right  there. 
He  should  not  try  to  improve  his  disclos- 
ures but  should  file  it  away  for  future  refer- 
ence in  the  final  argument  and  pass  along  to 
something  else.  Any  practitioner  who  has  had 
court  experience  can  tell  dozens  of  incidents  by 
way  of  illustration  of  the  advisability  of  follow- 
ing this  rule.  A  typical  one  occurred  recently 
in  a  street  car  controversy.  A  woman  claimed 
that  the  dispute  started  because  the  conductor 
gave  her  only  three  nickels  in  change  out  of  her 
quarter  instead  of  four;  that  led  to  an  alterca- 
tion and  to  her  ejectment  from  the  car  and  of 
course  much  hinged  upon  the  fact  whether  the 
conductor  was  in  the  right  or  in  the  wrong.  The 
examination'  proceeded  like  this;  the  car  was 
crowded  and  it  was  a  little  dark ;  the  woman  did 
not  claim  that  she  really  counted  the  nickels, 
what  she  said  was,  "I  am  sure  there  were  only 
three  because  I  heard  them  go  in  my  hand  click, 
click,  click."  Then  the  cross-examination  con- 
tinued, "Where  did  you  get  on?"  " Where  did 
you  get  off?"  etc.;  then  she  left  the  stand. 

Now  of  course  three  clicks  meant  four  nickels, 
the  first  nickel  making  no  click.  An  inexper- 


THE  CROSS-EXAMINATION.       189 

ienced  young  lawyer  conducting  the  cross- 
examination  would  doubtless  have  said,  "Ah!" 
"Three  clicks,  were  there.  Doesn't  that  make 
four  nickels?"  and  she  would  probably  have 
replied,  "The  first  click  was  on  my  wedding 
ring."  But  the  experienced  examiner  who 
dropped  the  matter  right  there  saved  up  refuta- 
tion of  her  testimony  for  the  last  speech. 

This  was  a  very  small  incident  but  it  is  a 
matter  of  observation  that  nearly  every  jury 
case  sooner  or  later  turns  on  some  small  inci- 
dents which  though  it  may  not  convince  the 
twelve  jurors  will  cause  one  juror  to  hesitate. 
It  may  produce  a  small  verdict  instead  of  a  large 
one  or  produce  a  hung  jury.  For  the  very  rea- 
son that  it  is  small  it  passes  by  the  lawyer's  at- 
tention but  the  jury  are  twelve  men  of  quite  or- 
dinary intelligence  who  have  no  experience  with 
the  technicalities  of  the  law  and  who  deal  with 
the  commonplace  everyday  matters  and  a  very 
small  thing  may  affect  them.  So  it  is  the  small 
incidents  that  count  and  in  the  last  speech  they 
are  often  used  effectively. 

At  times  if  a  point  is  overlooked  and  then 
developed  in  the  last  speech  the  court  will  stop 
the  speeches  and  allow  a  party  to  offer  more  ev- 
idence but  this  is  a  matter  of  grace  and  favor 
with  the  court.  It  is  a  very  difficult  position 
for  a  lawyer  to  be  put  in  because  frequently  the 


190  TRIAL  TACTICS. 

witnesses  are  gone  beyond  recall  from  the  court 
room  and  the  court  will  not  stop  the  case  long 
enough  to  allow  them  to  be  sent  for  and  brought 
back.  So  the  small  incidents  must  be  watched 
as  the  case  proceeds,  in  every  part. 

If  there  are  questions  on  the  cross-examina- 
tion care  must  be  taken  to  see  that  they  are  put 
in  the  proper  order.  It  may  be  important 
which  question  comes  first  and  if  they  are  re- 
versed the  point  may  be  utterly  lost.  Suppose 
for  instance  that  a  man  is  attempting  to  prove 
that  another  man  had  insulted  his  wife,  and  the 
time  when  the  alleged  insult  took  place  is  im- 
portant, the  husband  stating  that  it  occurred  on 
a  New  Year's  day.  The  lawyer  on  the  other 
side  of  the  case  has  a  letter  which  the  husband 
wrote  to  his  client  on  the  following  June  first — 
a  friendly  letter.  If  the  plaintiff  had  heard 
this  story  on  New  Year's  day  he  probably  would 
not  subsequently  write  a  friendly  letter  to  the 
defendant,  so  as  the  matter  is  being  examined 
and  the  plaintiff  testifies  that  his  wife  has  told 
him  this  story  if  the  defendant's  lawyer  should 
ask  "How  does  it  happen,  sir,  that  you  wrote 
this  friendly  letter  on  the  first  of  June?"  he 
would  probably  answer,  "My  wife  did  not  tell 
me  about  it  until  after  that."  It  is  incumbent 
upon  the  defendant's  lawyer  to  show  that  the 
wife  told  it  to  him  before  that  if  she  told  it  at  all, 


THE  CROSS-EXAMINATION.       191 

because  if  she  did  tell  it  before  that,  it  did  not 
amount  to  much  otherwise  he  would  not  after- 
wards have  written  a  friendly  letter.  If  the 
complainant  is  dishonest  he  will  try  to  make  the 
date  as  late  as  possible.  So  the  defendant's 
lawyer  should  proceed  in  this  way,  "Your  wife 
told  you  this  thing  ?  "  "  Yes,  sir. "  "  Well  now 
it  didn't  amount  to  very  much  because  she  didn't 
tell  it  to  you  for  some  time  after  it  happened?" 
"O  yes,  it  amounted  to  a  great  deal  because  she 
told  it  to  me  immediately."  This  commits  him. 
It  is  unlikely  that  he  should  have  heard  his 
wife's  tale  on  the  first  of  January  and  should 
have  written  the  defendant  a  friendly  letter  af- 
ter that  date,  so  his  story  is  shown  to  be  incon- 
sistent and  incredible.  In  this  way  the  se- 
quences must  be  carefully  watched.  The  illus- 
tration gives  a  wide  range  of  several  months  but 
it  may  be  a  matter  of  only  days  or  hours. 

The  truth  must  often  be  elicited  by  indirection, 
supposing  that  the  purpose  of  the  examination  is 
to  break  down  a  liar.  If  the  other  side  is  tell- 
ing the  truth  and  things  happened  just  as  they 
have  stated  the  chances  are  that  they  are  in  the 
right  and  it  is  altogether  likely  that  they  will 
win  the  suit  and  that  they  should  win  it.  It  is 
not  the  duty  of  a  lawyer  to  maintain  a  suit  or 
defense  for  his  client  who  is  in  the  wrong.  It 
is  his  place  simply  to  do  his  full  duty  to  his  cli- 


192  TEIAL  TACTICS. 

ent,  and  everything  that  has  been  said  hereto- 
fore is  merely  to  aid  in  finding  out  whether  the 
other  side  has  the  right  of  the  case  or  not,  which 
cannot  be  ascertained  until  these  various  tests 
that  are  being  explained  have  been  tried. 

Suppose  a  witness  states  among  other  things 
that  B.  and  C.  were  present  on  a  certain  occa- 
sion and  it  is  important  to  the  other  side  to  have 
him  admit  that  W.  also  was  present.  If  he  is 
asked  point  blank  "Was  W.  there?"  he  will  say 
no.  The  cross  examiner  is  satisfied  that  W.  was 
present  and  that  the  witness  knows  it  but  the 
truth  must  be  elicited  from  him  indirectly.  So 
he  is  carried  along  with  the  details  of  what  he 
has  said,  that  B.  was  there,  that  C.  was  there, 
and  so  forth  and  he  is  then  asked,  "It  was  quite 
stormy,  was  it  not  ?  "  "  Why  yes,  it  was  chilly. ' ' 
"A  blizzardy  day,  as  you  were  standing  out  there 
at  the  corner  at  the  end  of  the  field?"  "Yes, 
sir."  "And  B.  was  quite  wrapped  up  in  a  large 
coat?"  "Yes."  "And  W.  He  had  his  heavy 
coat  on?"  or  "Was  it  W.  that  said,  'I  wish  I 
had  my  coat;  I  didn't  think  it  was  so  cold?'  " 
"No,  W.  didn't  say  that;  it  was  C.  said  that;  W. 
had  his  coat."  In  some  such  way  he  can  prob- 
ably be  cornered  into  an  admission  that  W.  was 
present,  whereas  if  he  had  been  asked  directly 
"Was  W.  there?"  he  would  have  answered 
"No,"  because  on  direct  reflection  he  would  rec- 


THE  CROSS-EXAMINATION.       193 

ognize  well  enough  the  importance  of  throwing 
W.  out. 

A  question  should  not  be  asked  on  cross-exam- 
ination unless  it  has  been  balanced  carefully  but 
quickly.  A  cross-examiner's  mind,  like  light- 
ning, must  cover  a  great  deal  of  territory  in  a 
flash  and  he  must  be  able  to  foresee  instantly, 
first,  what  the  answer  is  likely  to  be;  second,  if 
the  answer  is  such  as  is  wanted  will  it  do  him 
any  good;  third,  if  the  answer  is  not  what  is 
wanted  will  it  do  him  harm;  and  fourth,  what 
are  the  probabilities  and  had  he  better  keep 
quiet.  Sometimes  the  answer  is  bound  to  injure 
the  examiner  whether  it  is  yes  or  no,  as  in  the 
following  case  where  it  had  been  better  if  he  had 
refrained  from  asking  the  question  at  all.  A 
woman  was  suing  a  railroad  company  for  in- 
juries and  there  was  the  usual  claim  that  she 
was  greatly  disabled  at  the  date  of  the  trial  as  a 
result  of  the  accident  into  which  the  defendant 
company  had  cast  her.  The  defendant  com- 
pany claimed  that  the  woman  was  not  affected 
by  the  accident  at  all  but  that  she  had  been  a 
sufferer  for  years  from  various  ailments  and 
that  her  condition  on  the  day  of  the  trial  was 
the  result  of  those  ailments  and  was  not  caused 
by  the  accident  in  question.  She  had  been  at- 
tended by  her  family  physician,  who  could  not 
come  to  court  on  the  day  of  the  trial  because  he 


194  TRIAL  TACTICS. 

was  ill,  so  it  was  arranged  to  go  to  his  house  and 
take  his  deposition  for  the  defence.  He  was 
asked  whether  he  had  treated  this  woman  prior 
to  the  accident  and  for  what  and  he  made  some 
answers  in  his  deposition.  The  question  mis- 
takenly asked  -on  cross-examination  was  this. 
"  Doctor,  this  deposition  is  being  taken  at  your 
house  while  you  are  sick?"  "Yes."  " Doctor, 
is  your  memory  now  as  good  as  it  was  while  you 
were  well?"  a  question  to  which  the>  answer 
either  way  would  hurt  the  plaintiff.  If  the 
doctor  said  "Yes,  my  memory  is  as  good  as  it 
was,"  it  would  strengthen  him  as  a  witness  be- 
cause a  witness  with  a  good  memory  is  always 
entitled  to  respect.  But  if  the  doctor  said  "No, 
it  is  not  so  good,"  the  argument  of  the  defend- 
ant's counsel  would  be  that  the  witness  remem- 
bers so  much  as  he  has  given,  but  that  if  he  were 
well  he  would  probably  remember  more.  So 
either  way  the  answer  yes  or  no  was  bound  to  be 
injurious  to  the  plaintiff.  The  way  he  actually 
answered  was.  "If  I  were  well  I  think  I  could 
recall  still  further  treatments  I  gave  to  this 
woman  in  former  years."  But  this  illustrates 
a  case  where  the  question  should  not  have  been 
put  at  all. 

Generally  speaking  it  is  much  easier  to  tear 
down  and  criticize  than  it  is  to  build  up,  so  it  is 
much  easier  to  criticize  another  man's  cross-ex- 


THE  CROSS-EXAMINATION.       195 

animation  than  it  is  to  conduct  one.  In  the  gen- 
eral plan  of  cross-examination  however  there 
should  be  some  sort  of  a  basis.  Then  in  follow- 
ing this  general  logical  plan  more  liberties  can 
be  taken  if  one  has  the  last  speech  than  if  the  op- 
ponent has  the  last  speech.  More  experiments 
can  be  tried  because  minor  injurious  matters 
can  be  smoothed  away  or  explained  away  in  the 
last  speech,  whereas  this  would  not  be  possible 
if  the  opponent  had  a  speech  following. 

A  witness  on  cross-examination  may  be  taken 
through  his  testimony  again  from  beginning  to 
end,  step  by  step,  which  generally  is  a  bad  plan 
if  his  story  is  true  because  he  makes  it  more  em- 
phatic with  the  advantage  of  telling  it  twice, 
but  it  may  be  a  good  plan  if  his  story  is  false,  es- 
pecially if  it  is  a  long  and  elaborate  story,  be- 
cause his  second  version  may  be  quite  different 
from  the  first  one.  There  may  be  some  incident 
that  occurs  in  his  story  which  did  not  occur  in 
actuality — because  the  whole  thing  is  a  fabrica- 
tion— which  he  may  imagine  on  the  second  occa- 
sion somewhat  differently.  It  is  an  old  saying 
that  a  liar  must  have  a  good  memory.  If  a 
thing  actually  happened  a  man  may  tell  it  a  hun- 
dred times  in  the  same  way,  getting  it  every  time 
correctly  because  he  has  the  mental  picture  of  it 
and  that  picture  is  always  the  same.  But  if  he 
never  had  the  experience  he  may  be  caught  on 


196  TRIAL  TACTICS. 

some  incidental  feature  which  shows  that  he  is 
either  fabricating  or  that  he  is  ready  to  fabri- 
cate, and  either  case  weakens  him  with  the  jury. 
A  witness  asked  questions  by  his  own  lawyer 
will  answer  every  question  promptly.  But  put 
through  the  cross-examination  and  asked  pre- 
cisely the  same  questions,  which  are  however 
mixed  in  with  other  things  which  he  has  not  con- 
sidered he  will  not  answer  promptly  if  he  is  tell- 
ing a  lie  or  if  part  of  his  testimony  is  false.  He 
will  not  answer  the  question  to  the  cross-exami- 
ner as  promptly  as  he  did  the  same  question  to 
the  lawyer  on  his  side  of  the  case  unless  he  is  an 
absolutely  truthful  man  who  does  not  care  for 
consequences.  If  he  is  inclined  to  lie  and  wants 
to  help  himself  or  his  friend  to  win  the  case  he 
stops  and  considers  what  to  answer  to  a  question 
in  order  to  produce  the  best  results  in  the  case. 
The  moment  he  does  that  he  reveals  himself  as 
dishonest.  Even  though  the  answer  turns  out  to 
be  true  the  mere  fact  that  he  is  waiting,  hesitat- 
ing to  give  it  and  that  he  finally  gives  it,  not  as  a 
fact  but  as  the  result  of  a  deduction  on  his  part 
shows  that  he  is  not  telling  the  absolute  truth, 
that  he  is  there  to  swear  for  the  party  that  calls 
him  and  that  he  so  understands  it.  So  when  he 
stops  and  waits  on  a  very  simple  question  which 
is  apparent  to  the  jury  the  skillful  cross-exam- 
iner will  say,  "Why  don't  you  answer?"  "What 


THE  CROSS-EXAMINATION        197 

are  you  waiting  for  ?  "  "  Why  do  you  hesitate  ?' ' 
and  in  three  or  four  phrases  which  will  get  into 
the  record  indicate  to  the  reviewing  court  this 
witness's  manner  of  testifying.  He  will  indi- 
cate that  this  man  who  answered  readily  on  his 
own  side  could  not  answer  readily  on  the  oppo- 
nent's  side,  thus  showing  that  he  was  groping 
for  an  answer  which  might  seem  advantageous. 

The  primary  importance  in  having  some  gen- 
eral plan,  some  object  in  the  cross-examination 
cannot  be  too  strongly  emphasized.  To  simply 
call  the  witness  again  and  remark,  "Remember 
you  are  under  oath,"  and  "What  do  you  say?" 
and  have  him  repeat  with  emphasis  what  he  has 
already  told  obviously  does  more  harm  than  good 
because  it  merely  intensifies  his  previous  story. 

If  the  theory  of  the  case  or  defense  is  in  a 
certain  direction  it  is  a  mistake  to  cross-examine 
in  another  direction.  It  would  be  very  absurd, 
if  an  alibi  is  relied  upon  for  defense,  to  cross-ex- 
amine the  witnesses  of  the  prosecution  upon 
some  other  theory  of  defense.  If  the  witnesses 
for  instance  have  testified  that  the  assailant 
struck  the  prosecuting  witness  with  a  club  it 
would  be  senseless  for  the  defense  to  say,  "Now 
did  you  not  see  the  prosecuting  witness  reach  to 
his  pocket  as  though  to  draw  a  gun,  and  did 
you  not  at  that  instant  and  not  sooner  see  the 
other  man  strike  him  with  a  club?"  when  his 


198  TRIAL  TACTICS. 

real  defense  is  that  his  client  was  not  there  at 
all  but  was  a  thousand  miles  away.  It  would 
not  make  any  difference  under  these  circum- 
stances whether  the  man  who  was  there,  was 
first  threatened  or  not.  Under  circumstances 
like  these  the  prosecuting  attorney,  in  his  last 
speech,  would  be  justified  in  saying  that  the  de- 
fense of  an  alibi  was  all  fabrication,  something 
to  which  the  defendant  had  been  driven  by  the 
desperation  of  the  case  after  his  attempt  to 
prove  self-defense  had  failed.  He  will  argue 
that  this  is  plainly  to  be  seen  from  the  cross-ex- 
amination of  the  State's  witnesses  when  they 
were  asked  so  carefully  if  it  were  not  true  that 
the  man  who  swung  the  club  was  first  threatened 
by  a  revolver  and  he  will  go  on  to  assert  that  the 
defense,  being  unable  to  establish  that  point, 
"Now  like  a  drowning  man  grasping  at  a  straw 
tries  to  prove  that  this  man  was  not  here  in  town 
but  was  in  Cincinnati  when  this  thing  occurred," 
which  makes  the  whole  defense  perilously  weak. 
So  the  necessity  of  having  some  sort  of  a  plan 
on  which  to  work  cannot  be  emphasized  too 
strongly. 

The  previously  given  precept  may  be  repeated 
that  it  is  well  to  keep  back  statements  of  the  de- 
fense until  the  direct  examination  is  all  in,  be- 
cause if  the  early  statement  of  defense  is  for  in- 
stance the  theory  of  insanity  it  may  be  a  check 


THE  CROSS-EXAMINATION.       199 

afterwards  to  taking  advantage  of  a  very  strong 
case  of  self-defense,  which  may  exist,  or  if  it  be 
self-defense  it  may  be  a  hindrance  to  taking  ad- 
vantage of  a  strong  plea  of  insanity;  or  if  it  is 
an  alibi  it  may  prevent  making  use  of  some  other 
line.  A  strong  defense  must  not  be  weakened  or 
confused  with  an  attempted  development  of 
something  else.  When,  as  sometimes  happens, 
two  defenses  exist,  insanity  and  self-defense,  for 
instance,  the  wiser  course  is  to  take  the  stronger 
of  these  rather  than  to  work  them  both  when 
there  is  danger  that  each  one  may  weaken  the 
other. 

Of  course  it  is  not  always  possible  for  a  law- 
yer to  adhere  unvaryingly  to  his  pre-arranged 
plan.  At  times  he  must  change  his  base  as  the 
case  requires,  just  as  many  a  good  general  who 
has  started  a  campaign  on  a  certain  plan  is  re- 
quired by  the  exigencies  of  the  case  to  change  it 
and  adopt  an  entirely  different  one,  but  so  far  as 
possible  he  must  have  in  mind  some  general 
method  of  procedure.  In  the  celebrated  May- 
brick  case  for  instance  in  which  the  accused  was 
convicted  of  having  poisoned  her  husband  by 
giving  him  arsenic,  her  attorney 's  claim  was  that 
the  husband  had  died  of  arsenic  but  that  he  him- 
self had  been  an  habitual  user  of  the  drug  and 
had  taken  too  much.  When  the  prosecution  put 
in  its  evidence  in  such  a  case  the  line  of  cross-ex- 


200  TRIAL  TACTICS. 

amination  of  the  defense  would  be  to  encourage 
the  witnesses  for  the  prosecution  as  much  as 
possible  to  prove  the  presence  of  arsenic,  because 
the  more  arsenic  they  proved  the  more  it  would 
help  to  indicate  an  habitual  and  excessive  use 
of  the  poison.  Whereas  if  the  defense  had  ulti- 
mately expected  to  rely  upon  the  fact  that  the 
deceased  did  not  die  of  arsenic  at  all  but  that  his 
death  had  been  caused  by  natural  causes  the  line 
of  cross-examination  should  have  been  towards 
getting  witnesses  to  diminish  the  testimony  as 
to  the  presence  of  an  abundance  of  arsenic. 

Again  in  a  case  of  forgery  if  the  line  of  cross- 
examination  were  on  the  theory  that  the  accused 
had  authority  to  write  the  paper  it  should  indi- 
cate a  line  of  defense  of  that  kind ;  and  if  the  de- 
fense should  later  swing  about  and  insist  that 
the  accused  did  not  write  the  paper  at  all  the  two 
positions  would  be  so  manifestly  inconsistent  as 
to  give  to  the  prosecution  a  very  strong  argu- 
ment that  the  defense  was  trying  to  lie  either  on 
one  end  of  the  investigations  or  on  the  other. 

So  in  injury  cases  the  questions  to  be  devel- 
oped are ;  Was  the  defendant  company  negligent 
in  the  character  of  the  machinery?  Was  the 
plaintiff  careful  in  his  use  of  it  ?  Was  the  ma- 
chinery defective  long  enough  for  the  plaintiff 
to  know  that  it  was  defective  ?  To  some  extent 
these  are  inconsistent  positions  and  a  blind  ques- 


THE  CROSS-EXAMINATION.       201 

tioning  and  cross-examining  of  the  witnesses 
without  any  fixed  plan  of  action  is  very  apt  to 
produce  disastrous  results  and  weaken  the  side 
that  undertakes  so  aimless  a  task. 

If  it  be  clearly  seen  that  the  line  of  cross-ex- 
amination for  the  defense  indicates  the  idea  that 
the  plaintiff  had  assumed  the  risk  this  is  prac- 
tically an  admission  by  the  defense  that  the  de- 
fect existed.  If  then  the  defense  afterwards  at- 
tempts to  assert  that  the  defect  did  not  exist  at 
all  the  argument  would  be  that  that  is  a  subse- 
quent expedient  because  it  was  shown  during 
the  trial  that  the  defense  knew  the  defect  had 
existed,  knew  it  to  such  an  extent  that  they  tried 
to  prove  that  the  plaintiff  had  assumed  the  risk 
of  the  defect. 

Unless  a  lawyer  is  on  his  guard  he  can  be  per- 
suaded into  such  inconsistent  positions.  In  a  re- 
cent murder  case,  the  body  of  the  victim  had 
been  discovered  devoid  of  clothing  in  a  sort  of 
cesspool  or  cistern  with  a  heavy  lid  or  cover  over 
the  top.  The  attorneys  for  the  defense  put 
many  questions  in  regard  to  the  condition  of  the 
liver  of  the  deceased  as  indicative  that  death 
might  have  been  caused  from  a  disordered  liver. 
The  prosecuting  attorney  allowed  undue  promi- 
nence to  that  point  by  resuming  the  re-direct  ex- 
amination of  the  physicians  and  calling  other 
physicians  to  testify  to  the  condition  of  the  liver 


202  TRIAL  TACTICS. 

thereby  almost  giving  the  impression  that  the 
test  of  the  question  of  guilt  or  innocence  de- 
pended upon  the  condition  of  the  liver;  which 
was  plainly  misleading  and  inconsequential. 
The  prosecutor  should  not  have  re-examined  his 
own  physicians  or  cross-examined  the  defend- 
ant's physicians;  he  should  have  waited  for  the 
final  argument,  in  which  the  prosecution  has  the 
advantage  with  the  last  speech  and  then  he 
should  have  ignored  the  question  of  the  disor- 
dered liver.  He  should  have  concentrated  him- 
self upon  the  question  of  the  identity  of  the  mur- 
derer, taking  it  for  granted  that  murder  had 
been  committed  and  that  the  only  question  was 
by  whom  and  in  his  last  speech  he  should  simply 
have  said  in  one  or  two  sentences,  "Well  now, 
about  this  liver,  gentlemen.  I  assume  that  one 
or  two  of  you  may  have  been  influenced  to  be- 
lieve that  the  deceased,  lingering  with  a  disor- 
dered liver  finally  died  and  being  dead  took  off 
his  clothes,  walked  two  or  three  miles,  threw 
himself  into  the  cesspool  and  covered  himself 
over  with  the  lid.  Now  some  of  you  may  be- 
lieve that  but  I  don't  think  so,"  which  would 
have  been  more  effective  than  two  or  three  days' 
cross-examination  in  regard  to  the  liver. 

So  at  times  the  art  of  the  cross-examiner  is  to 
intensify  the  very  things  that  have  been  brought 
out  and  then  by  a  quick  turn  to  use  them  to  his 


THE  CROSS-EXAMINATION.       203 

own  advantage  where  he  can  see  that  that  is  the 
only  thing  to  do.  There  was  an  illustration  of 
this  in  a  case  that  happened  a  few  years  ago. 
The  creditors  had  sold  merchandise  to  a  trades- 
man who  may  be  called  the  debtor  and  the  credi- 
tors found  that  the  debtor  had  transferred  his 
whole  stock  in  trade  to  his  wife,  a  very  prepos- 
sessing woman.  The  creditors  attached  the 
merchandise,  claiming  that  it  still  belonged  to 
the  debtor  and  that  the  transfer  from  the  debtor 
to  the  debtor's  wife  was  a  fraud.  The  wife  of 
course  replevied  and  thus  the  case  was  tried,  the 
wife  claiming  the  goods  on  a  replevin.  It  was 
an  extremely  dangerous  case  because  the  wife 
was  the  plaintiff  and  her  lawyer  had  the  last 
speech.  The  creditor's  lawyer  in  order  to  prove 
that  the  transaction  was  a  fraud  from  beginning 
to  end  produced  a  witness  who  testified  that  he, 
the  witness,  had  aided  the  debtor  in  secreting 
the  goods  at  midnight  and  this  witness  devel- 
oped the  method  of  the  entire  plan  whereby  the 
fraud  was  conceived  and  executed.  Naturally 
this  witness  in  turn  was  contradicted  by  the 
debtor.  Not  only  that  but  the  debtor's  attorneys 
brought  a  dozen  reputable  citizens  of  the  highest 
standing  to  impeach  the  character  of  this  princi- 
pal witness.  Now  the  creditor's  lawyer  exerted 
himself  to  exasperate  those  witnesses  in  order  to 
make  them  testify  as  forcibly  as  they  could 


204  TEIAL  TACTICS. 

against  this  witness,  his  own  witness,  because  he 
knew  that  his  witness  was  necessarily  damaged 
in  reputation  anyway  by  their  testimony.  On 
cross-examination  he  led  them  on  to  paint  the 
witness's  character  in  the  worst  possible  light 
and  the  observers  thought  the  creditor's  lawyer 
was  making  a  mistake.  But  this  was  not  the 
case,  as  the  sequel  showed.  When  the  argu- 
ments came  on,  the  wife's  lawyer  of  course  said 
that  she  had  bought  the  goods;  then  the  cred- 
itor's lawyer  spoke,  knowing  that  the  wife's  law- 
yer would  speak  last  and  knowing  also  that  in 
his  last  speech  he  would  demolish  this  witness; 
so  the  creditor's  lawyer  contented  himself  with 
the  following  little  speech,  the  facts  and  circum- 
stances of  which  could  not  be  contradicted,  "And 
it  is  all  explained  to  you,  gentlemen  of  the  jury, 
by  the  testimony  of  my  witness  (naming  him, 
this  principal  witness) ,  but  now  you  have  heard 
twelve  of  your  esteemed  fellow  citizens  affirm 
that  they  would  not  believe  this  witness  under 
oath.  I  tell  you  frankly,  gentlemen,  I  would  not 
either  and  I  trust  you  won't  believe  him  under 
oath  unless  you  find  him  corroborated  by  pretty 
strong  circumstances."  And  then  he  repeated 
some  of  the  circumstances,  "And  further,  gen- 
tlemen of  the  jury,  you  have  heard  these  twelve 
citizens  say  that  this  witness  (naming  him 
again)  has  been  guilty  of  many  misdemeanors 


THE  CROSS-EXAMINATION.       205 

and  that  tie  is  a  man  of  bad  reputation.  Now, 
gentlemen,  I  haven't  any  doubt  that  he  is  a  man 
of  bad  character  and  he  is  just  the  kind  of  a 
man  that  this  party  here  (naming  the  debtor) 
would  ask  to  aid  him  in  perpetrating  this  fraud. 
Isn't  he?"  The  jury  thought  so  too  as  there 
was  nothing  left  for  the  opposing  lawyer  to  talk 
about.  He  could  not  overcome  the  effect  because 
he  himself  and  his  own  witnesses  had  done  their 
utmost  to  blacken  the  witness.  In  that  case  it 
would  have  been  a  colossal  mistake  for  the  cred- 
itor's  attorney  to  have  tried  to  impeach  the  tes- 
timony of  those  reputable  witnesses  or  to  bolster 
up  his  own  witness  as  though  he  were  being 
wronged,  because  the  odds  were  too  greatly 
against  him.  The  only  possible  plan  was  to  turn 
the  adversary's  own  weapon  against  him. 

So  the  issues  in  the  case  must  be  clearly  within 
grasp  and  the  prospects  of  the  success  of  the 
general  plan.  In  a  case  which  recently  passed 
through  the  courts,  a  woman  who  had  been  in- 
jured brought  suit  for  damages  and  won  a  large 
verdict  which  was  later  reversed  on  a  technical 
error  and  then  the  woman  died.  Her  adminis- 
trator was  substituted  in  her  place.  The  case 
came  on  for  trial  and  the  plaintiff  and  his  at- 
torneys and  his  physician  of  course  saw  it  to 
their  interest  to  aggravate  the  condition  of  the 
woman  as  much  as  possible  to  show  how  much 


206  TRIAL  TACTICS. 

she  had  suffered  and  how  terribly  injured  she 
had  been.  The  defendant's  attorney  quietly  en- 
couraged them  to  do  so  until  they  proved  to  the 
satisfaction  of  themselves  and  of  the  jury  that 
the  injury  to  the  woman  had  resulted  in  her 
death.  The  judge  for  a  moment  thought  that  the 
defendant's  attorney  was  making  a  mistake,  the 
usual  mistake  of  cross-examiners.  But  having 
convinced  everybody  that  the  accident  had  caused 
the  death  of  the  woman  the  defendant 's  attorney 
then  asked  that  the  jury  be  excluded  that  he 
might  say  a  few  words  confidentially  to  the 
court.  The  jury  went  out  and  the  defendant's 
attorney  reminded  the  judge  that  the  Appellate 
Court  had  very  recently  decided — so  recently 
that  it  had  not  yet  been  published — that  inas- 
much as  the  woman  died  of  the  injury  an  en- 
tirely new  cause  of  action  was  created  known  as 
a  cause  under  Lord  Campbell's  act,  as  it  is  gen- 
erally termed,  namely  the  act  of  the  legislature 
which  allows  a  recovery  where  death  ensues, 
where  at  common  law  there  is  no  such  right  of 
action.  The  courts  have  held  that  that  action 
displaces  the  first  action  or  in  technical  terms 
causes  the  first  action  to  abate.  When  the  court 
was  persuaded  of  that  he  recalled  the  jury  and 
ordered  in  the  existing  action  a  verdict  of  not 
guilty  and  judgment  on  the  verdict.  The  at- 
torney for  the  plaintiff,  who  then  for  the  first 


THE  CROSS-EXAMINATION.       207 

time  had  looked  into  the  thing,  found  that  he  had 
to  commence  a  new  suit  based  upon  the  death 
and  unfortunately  found  that  he  was  just  four 
days  too  late.  The  truth  in  this  case  happened 
to  be  that  the  woman's  injury  did  not  result  in 
her  death  at  all,  but  these  parties  being  encour- 
aged to  overdraw  the  matter,  though  they  per- 
haps did  not  directly  lie  about  it,  simply 
stretched  themselves  most  effectively  out  of 
court. 

The  same  things  which  it  is  advisable  to  as- 
certain with  reference  to  the  jurors  to  see 
whether  they  are  fit  as  jurors,  it  is  also  advisable 
to  find  out  with  reference  to  the  witnesses ;  to  see 
whether  there  is  anything  which  might  tend  to 
influence  the  witnesses  either  to  exaggerate  their 
testimony  or  to  imagine  things  or  to  lie  deliber- 
ately; whether  for  instance  they  are  relatives, 
whether  they  belong  to  the  same  society  or  are  in 
the  same  line  of  business  and  so  on.  If  a  witness 
is  on  the  stand,  whose  testimony  is  strongly  un- 
favorable, and  the  importance  of  impairing  it  to 
some  extent  is  felt,  something  of  that  kind  may 
be  elicited  from  him  which  will  at  least  give  an 
argument.  Some  facts  may  be  found  in  regard 
to  him  from  which,  in  accordance  with  the  gen- 
eral motives  of  humanity,  it  may  be  argued  that 
he  was  tempted  to  swear  falsely  or  mistakenly 


208  TKIAL  TACTICS. 

or  that  his  prejudice  induced  him  to  say  things 
perhaps  not  purposely  false,  but  biased. 

Some  witnesses  of  course  will  adhere  to  the 
strict  truth  even  though  they  feel  a  friendship 
for  or  an  interest  in  the  parties ;  but  many  things 
in  the  testimony  are  not  of  the  mathematical 
kind  and  they  rest  more  on  estimations ;  the  wish 
is  father  to  the  thought  and  if  the  witness 
wishes  a  certain  result  he  commences  to  think  in 
that  direction,  especially  in  all  matters  relative 
to  opinions.  If  the  witness  feels  interested  in 
getting  a  large  amount  of  money  for  his  prop- 
erty he  will  swear — and  swear  conscientiously — 
to  a  high  value  for  that  property  and  will  believe 
he  is  telling  the  truth  when  he  is  saying  it. 

Actuating  motives  of  friendship  or  hatred  can 
usually  be  easily  disclosed  in  the  witnesses.  Hu- 
man nature  is  such  that,  generally  in  a  sensa- 
tional matter  such  as  a  very  acrimonious  family 
fight  concerning  inheritance  or  the  breaking  of 
a  will,  bitterness  of  feeling  is  always  manifest. 
People  will  take  sides,  and  especially  in  small 
places,  the  controversy  becomes  a  very  bitter 
matter  which  may  even  find  its  way  into  politics. 
The  feuds  in  Kentucky  and  Tennessee  where 
families  have  been  fighting  each  other  for  gen- 
erations, lying  in  wait  to  kill,  are  well  known. 
Naturally  if  there  is  any  feeling  of  that  sort  in 
a  court  room  the  witnesses  will  manifest  it,  par- 


THE  CEOSS-EXAMINATION.       209 

ticularly  the  women  who  are  usually  more  ex- 
pressive of  emotion.  An  emotional  woman  wit- 
ness asked  on  cross-examination,  "Didn't  you, 
when  you  spoke  to  Mr.  McLaren,  etc. — "  naming 
the  leader  of  the  other  side — will  probably  as- 
sume an  expression  of  hatred  and  scorn  as  much 
as  to  say,  "I  wouldn't  speak  to  that  man  in  my 
life."  If  such  a  witness's  account  is  flatly  con- 
tradicted by  another  witness  who  in  demeanor  is 
placid,  betraying  no  feeling  either  when  speak- 
ing for  the  plaintiff  or  for  the  defendant  the 
jury  can  see  that  the  latter  witness  is,  probably, 
as  he  says,  entirely  disinterested;  whereas  the 
first  witness  although  she  claims  to  be  entirely 
disinterested  is  betrayed  by  her  expression.  If 
it  comes  to  a  question  of  veracity  between  the 
two  witnesses  the  jury  will  probably  believe  the 
one  who  appears  disinterested. 

So  if  any  circumstance  is  found  which  might 
naturally  be  expected  to  influence  the  witness, 
of  course  it  should  be  brought  out  but  care  must 
be  taken  to  see  that  the  point  is  well  made.  A 
client  will  sometimes  give  erroneous  informa- 
tion to  his  lawyer;  he  will  say  for  instance, 
"Why  of  course  the  fellow  is  lying.  He  mar- 
ried the  plaintiff's  sister.  Of  course  he  will  lie 
about  it."  Then  when  the  witness  is  asked, 
"You  married  the  plaintiff's  sister,  didn't  you?" 
and  he  answers  "No,  I  didn't,"  his  story  has 


210  TRIAL  TACTICS. 

been  simply  intensified,  because  to  attempt  to 
break  down  a  witness  is  an  admission  that  his 
testimony  was  important. 

Great  care  should  be  taken  not  to  inadvert- 
ently piece  out  an  otherwise  defective  examina- 
tion. If  the  witness,  for  instance,  has  not  cov- 
ered a  certain  point  he  should  not  be  given  an 
opportunity  to  do  so  nor  should  his  attorney  be 
made  to  realize  the  fact  of  his  omission  and  thus 
be  prompted  to  take  the  witness  and  cover  it. 
Here  is  an  illustration.  It  is  charged  that  a 
railroad  engine  ran  over  the  plaintiff;  that  the 
engineer  did  not  ring  the  bell  as  required  by  the 
ordinance ;  that  the  company  did  not  have  a  flag- 
man at  the  street  crossing  to  wave  the  flag  as  re- 
quired by  another  ordinance.  The  railway  com- 
pany produces  a  witness  who  stood  near  the  spot 
and  who  for  the  defense  gives  testimony  that  the 
bell  was  ringing  and  with  that  is  dismissed.  He 
has  shown  himself  to  have  been  at  the  place  the 
same  as  the  plaintiff's  witnesses  were;  perhaps 
he  was  standing  conversing  with  one  of  the 
plaintiff's  witnesses.  The  plaintiff's  witnesses 
testified  that  the  bell  was  not  rung  and  the  flag- 
man was  not  there.  The  defendant's  witness 
testified  only  that  the  bell  was  rung.  Now  he 
has  given  the  strongest  possible  evidence  for  the 
plaintiff  because  in  the  argument  to  the  jury  that 
the  plaintiff's  witness  was  telling  the  truth  when 


THE  CROSS-EXAMINATION.      211 

he  said  the  flagman  was  not  there  the  attorney 
will  say,  "  Gentlemen  of  the  Jury,  if  the  flagman 
had  been  there  why  did  not  the  defendant's  own 
witness,  whom  they  themselves  called  and 
thereby  held  out  to  be  a  truthful  party — why 
did  he  not  say  the  flagman  was  there?"  The 
mere  absence  of  testimony  on  the  part  of  the  de- 
fendant 's  witness  on  that  point  is  strong  corrob- 
oration  of  the  plaintiff's  witnesses  who  say  the 
flagman  was  not  there.  And  it  is  enough  for  the 
plaintiff  to  win  on  one  count  of  the  declaration. 
He  does  not  have  to  win  on  every  count. 

Some  cross-examiners  under  the  circumstances 
above  would  make  the  mistake  of  taking  the 
railroad's  witness  and  questioning  him  until 
they  got  him  to  say  the  flagman  was  there ;  or  if 
he  was  a  little  too  conscientious  to  directly  lie 
about  it  he  would  say  that  he  thought  the  flag- 
man was  there  or  that  the  flagman  might  have 
been  there  or  that  he  stood  with  his  back  to  the 
tracks  the  whole  time  and  could  not  say  whether 
the  flagman  was  there  or  not.  So  the  effective 
argument  that  the  plaintiff  might  use  from  the 
mere  silence  of  the  man  would  be  lost  if  the 
plaintiff  himself  cross-examined  him  into  a 
statement,  which  to  some  extent  at  least  over- 
came that  silence. 

In  general  terms  the  object  of  the  cross- 
examination  should  be  to  ascertain  whether  the 


212  TEIAL  TACTICS. 

account  which  the  witness  gave  is  a  reasonable 
account,  whether  it  fits  in  with  the  facts  and  cir- 
cumstances which  have  either  been  given  by  cred- 
ible witnesses  or  have  been  admitted  to  exist  in 
the  case  beyond  dispute;  to  learn  whether  the 
witnesses  corroborate  each  other  or  contradict 
each  other;  to  learn  whether  or  not  the  witness 
is  telling  a  deliberate  lie.  If  there  is  strong  sus- 
picion that  he  is  a  deliberate  liar  some  entirely 
different  method  must  be  used  from  the  one  to 
be  employed  if  he  is  believed  to  be  perfectly  con- 
scientious but  mistaken.  Only  experience  and 
intuition  can  be  guides  in  this  regard  and  even 
they  are  frequently  at  fault.  Some  of  the 
smoothest  liars  in  the  world  will  put  up  the  best 
appearance  and  some  of  the  most  honest  wit- 
nesses will  be  so  embarrassed  and  shambling  in 
the  witness  chair  that  almost  anyone  would  be- 
lieve them  to  be  lying.  About  the  only  reliable 
general  rule  for  detecting  falsehood  is  the  one 
that  has  been  brought  out  before.  If  the  wit- 
ness is  telling  a  drilled  story  he  will  be  apt  to  be 
glib  in  reciting  the  story  but  will  be  much  in- 
clined to  hesitate  in  giving  anything  else  not  in 
the  direct  part  of  his  drilled  story.  The  mo- 
ment he  is  asked  something  not  connected  with 
his  memorized  story  he  is  at  a  loss,  whereas  if 
the  occurrence  actually  happened  as  he  stated  he 
would  have  seen  all  the  surroundings  and  could 


THE  CROSS-EXAMINATION.       213 

tell  them  as  well  as  the  main  incidents.  Wit- 
nesses at  a  loss  will  resort  to  the  constant  repe- 
tition of,  "I  don't  know,"  and  "I  don't  remem- 
ber," whereas  if  their  main  story  were  true  they 
must  know  those  surroundings  and  must  remem- 
ber them. 

Many  things,  as  has  been  stated  before,  must 
be  discovered  by  indirection,  especially  if  the 
witness  is  shrewd  in  following  the  lawyer's 
moves  and  if  he  is  inclined  either  to  pervert  or  to 
allow  his  opinions  to  be  strained  on  his  side  of 
the  case.  Suppose  that  in  a  damage  suit  the  de- 
fendant is  attempting  to  prove  that  the  plaintiff 
assumed  the  risk;  that  he  had  such  familiarity 
with  the  defective  engine  in  question  as  to  well 
understand  its  peculiar  dangers,  and  that  thus 
knowing  and  understanding  he  nevertheless  re- 
mained in  the  employment  for  weeks,  perhaps 
months.  If  the  plaintiff  is  asked  directly  such 
questions  as  "Didn't  you  know  that  this  was  de- 
fective ?  "  "  Weren  't  you  told  about  it  weeks  be- 
fore?" he  will  immediately  say,  "No,  I  didn't 
know  anything  about  it."  That  may  be  the  only 
chance  the  defendant  has  to  prove  the  fact  on 
which  the  law  predicates  the  assumption  of  risk 
because  the  defendant  may  have  no  other  wit- 
ness. So  in  order  to  make  that  proof,  when  the 
witness  is  commencing  to  give  evidence  that  the 
engine  is  defective,  the  defendant  should  draw 


214  TRIAL  TACTICS. 

him  out  in  an  indirect  manner,  indicating  that 
the  defendant  did  not  believe  that  the  plaintiff 
knew  that  the  machine  was  defective.  He  should 
proceed  something  like  this:  "Now,  you  think 
this  wheel  was  too  small  in  diameter.  That  can- 
not be,  because  all  these  engines  have,  as  I  under- 
stand it,  exactly  the  same  kind  of  wheel,  have 
they  not?"  and  the  witness  will  answer,  "O  no, 
sir,  others  don't  have  it."  In  this  way  the  wit- 
ness instantly  indicates  a  wide  familiarity  with 
machines  in  general,  by  comparing  this  engine 
with  other  engines  that  have  come  to  his  exper- 
ience and  observation,  which  is  one  of  the  ele- 
ments of  the  assumption  of  risk.  As  a  matter 
of  law  it  is  much  easier  to  prove  the  fact  that  the 
man  who  has  had  experience  with  machinery  in 
general  did  assume  the  risk  of  a  certain  engine, 
than  to  prove  it  concerning  a  man  who  never 
saw  another  engine  in  his  life.  Great  care  must 
be  exercised  that  the  cross-examination  does  not 
open  the  door  for  damaging  evidence  which 
would  not  be  allowed  on  direct  examination. 
Sometimes  in  the  re-direct  examination  a  whole 
flood  of  matter  is  thrown  before  the  jury.  There 
was  an  illustration  of  this  in  one  of  the  Luetgert 
trials.  The  cross-examiner  asked  a  police  cap- 
tain a  question  indicating  that  he  thought  the 
police  captain  had  been  attempting  to  fix  or 
tamper  with  the  jury,  and  hinging  upon  that 


THE  CROSS-EXAMINATION.      215 

was  revealed  the  whole  story  of  how  the  cap- 
tain went  to  New  York  and  among  other  things 
how  he  made  an  examination  there  to  prove  that 
Mrs.  Luetgert  was  not  there.  Part  of  the  de- 
fense had  been  that  Mrs.  Luetgert  had  not  been 
killed  at  all  but  had  gone  away,  either  because 
she  was  insane  or  because  she  had  some  hatred 
for  her  husband  and  was  holding  herself  in  hid- 
ing in  New  York  in  the  hope  that  her  husband 
would  be  hanged.  But  the  entire  research  of 
the  police  in  New  York  came  out  in  the  redirect 
examination,  provoked  by  the  cross-examina- 
tion, whereas  there  might  have  been  some  doubt 
in  the  case  and  the  jury  might  possibly  have 
thought  the  woman  was  in  New  York,  if  some- 
thing that  the  state  could  not  have  introduced  at 
all  as  direct  original  evidence  had  not  been 
brought  out  in  the  redirect  examination. 

The  jurors  will  sometimes  entertain  a  doubt 
from  the  defense  and  from  things  brought  to 
the  jury's  attention  that  the  state  cannot  really 
contradict  because  they  are  not  in  the  case. 
That  possibly  is  a  defect  in  our  jurisprudence. 
For  instance  the  attorney  for  the  defendant  is 
allowed  to  say  things  to  the  jury,  which  should 
not  be  said  because  they  are  not  law,  but  which 
have  their  effect  on  the  jury.  If  the  jury  then 
returns  a  verdict  of  not  guilty,  that  ends  the 
prosecution,  because  the  State  is  not  allowed  a 


216  TRIAL  TACTICS. 

new  trial,  but  if  the  accused  is  found  guilty  lie 
may  move  for  and  obtain  a  new  trial  if  the 
State's  Attorney  has  said  improper  things  to  the 
jury. 

So  it  may  well  be  imagined  that  the  defend- 
ant's attorney  may  have  said  in  that  case  that 
Mrs.  Luetgert  was  hiding  in  New  York  just  for 
a  trick  upon  her  husband;  some  of  the  jurors 
may  even  have  believed  it  although  no  evidence 
was  offered  to  prove  it  and  it  might  have  left  an 
impression,  but  the  little  impression  it  might 
have  made  was  swept  away  by  the  statement  of 
the  police  captain  who  said  that  she  was  not  in 
New  York,  because  he  was  down  there  himself 
and  had  investigated.  That  testimony,  based 
on  hearsay  he  would  not  have  been  allowed  to 
give  unless  the  door  had  been  opened  during  the 
cross-examination. 

The  Luetgert  case  furnished  also  another  in- 
stance of  the  way  in  which  cross-examiners  fre- 
quently spoil  a  point  by  trying  to  over  develop 
it.  The  cross-examiner  in  that  case  had  obtained 
some  apparent  contradiction  from  the  medical 
expert  in  regard  to  an  internal  sesamoid  bone. 
He  was  not  satisfied  with  that  but  persisted  until 
he  had  shown  that  the  doctor  had  called  that 
same  bone  external  sesamoid.  Then  instead 
of  stopping  there  he  insisted  upon  question- 
ing further  "Now  doctor  this  bone  exhibit 


THE  CROSS-EXAMINATION.       217 

A  is  an  internal  sesamoid?"  "Yes,"  "Now 
doctor,  don't  you  remember  that  four  days  ago 
you  called  it  the  external  sesamoid  ?"  "Well 
yes,  I  did."  And  then  the  doctor  gave  a  plaus- 
ible explanation  for  the  apparent  inconsistency. 
The  skillful  thing  on  the  part  of  the  cross-exam- 
iner would  have  been  not  to  say  a  word  about 
the  contradiction  until  the  argument  when  he 
could  say,  "Gentlemen  of  the  Jury,  you  remem- 
ber in  the  session  of  the  18th  of  May  the  doc- 
tor called  this  exhibit  A  the  internal  sesamoid; 
now  I  have  here  the  reporter's  minutes — you 
will  correct  me  if  I  am  wrong  because  I  paid  par- 
ticular attention  to  it — where  on  the  12th  of  May 
he  called  the  same  bone  the  external  sesamoid. 
Now  what  do  you  think  of  a  doctor  like  that?" 
This  would  weaken  the  doctor's  entire  testimony 
because  he  could  not  then  get  up  and  explain 
himself. 

As  a  matter  of  fact  there  is  sometimes  a  dif- 
ference in  technical  nomenclature  and  apparent 
inconsistencies  can  be  explained  if  the  witness 
is  given  a  chance  but  the  shrewd  examiner  will 
not  give  him  a  chance.  It  may  be  considered 
contemptible  to  resort  to  tactics  of  this  sort  but 
unfortunately  it  is  part  of  a  lawyer's  calling  and 
frequently  as  in  many  other  things  his  methods 
are  judged  by  his  results.  If  he  wins  a  case  he 
is  a  great  lawyer ;  if  he  uses  the  same  trick  and 


218  TRIAL  TACTICS. 

loses  the  case  he  is  a  pettifogger  caught  in  the 
act.  There  is  nothing  that  succeeds  like  suc- 
cess. There  is  small  doubt  that  Rufus  Choate 
in  cross-examining  a  man  who  a  week  before 
had  said,  "external  sesamoid,"  and  to-day  said 
" internal  sesamoid,"  would  have  stopped  there 
and  used  this  against  him  on  the  final  argument. 

A  friendly  witness  must  not  be  driven  too  far. 
If  on  the  cross-examination  it  appears  that 
the  opponent's  witness  is  inclined  to  be  friendly 
this  must  not  be  over-emphasized  for  fear  the 
jury  will  get  the  impression  that  he  is  a  spy. 
If  the  jury  gets  an  idea  that  a  witness  called  by 
one  side  is  overly  friendly  to  the  other  side  they 
may  think  that  he  has  been  bribed  and  though 
he  may  be  a  truthful  and  conscientious  man,  if 
driven  too  far  his  testimony  will  have  the  oppo- 
site of  the  desired  effect. 

Care  must  be  used  in  wording  a  question  be- 
cause hostile  witnesses  are  shifty,  they  are 
evasive,  they  are  watchful.  For  instance  in  a 
certain  case  an  attempt  was  being  made  to  prove 
that  the  defendant  had  made  threats  against  the 
prosecutor.  The  witness  was  friendly  to  the 
defendant  and  the  State's  Attorney  had  been 
informed  that  the  defendant  had  said  in  the  pres- 
ence of  his  friend  that  he  would  attack  the  pros- 
ecuting witness,  and  the  examination  proceeded 
something  like  this:  "Mr.  Witness,  you  know 


THE  CKOSS-EXAMINATION.       219 

this  defendant  ?  "  "  Yes. "  "  Did  you  ever  have 
any  conversation  with  him  in  which  he  said  that 
he  would  slug  this  man  the  first  chance  he  got?" 
"No."  That  was  all  that  was  said  and  the  wit- 
ness told  the  absolute  truth  but  the  weakness 
was  this:  the  witness  had  heard  that  threat 
made,  but  not  in  the  course  of  a  conversation. 
Both  must  participate  to  make  it  a  conversa- 
tion. The  witness  had  answered  truthfully  and 
could  not  be  convicted  of  perjury  because  he  had 
said  no  to  that  particular  question,  but  if  the 
prosecutor  had  understood  his  business  he  would 
not  have  narrowed  his  question.  As  a  generally 
applicable  rule  it  is  well  not  to  act  on  narrow 
principles.  If  a  witness  is  asked  the  question, 
"Did  you  in  a  conversation  in  the  Holland  Hotel 
about  three  o'clock  in  the  afternoon,  hear  the 
defendant  say  thus  and  so?"  the  witness  may 
say  no,  because  he  heard  this  said  about  eleven 
o'clock  and  not  about  three  o  'clock.  The  way  to 
ask  such  a  question  is,  "Did  you  at  any  time  or 
place  hear  this  accused  speak  in  any  manner 
with  reference  to  this  prosecuting  witness?"  and 
then  after  locating  the  act  of  speaking,  ask  for 
the  details  thereof.  It  would  take  a  very  clever 
liar  to  evade  that.  Of  course  he  may  commit 
perjury  but  he  cannot  evade  safely.  So  the 
question  must  be  carefully  worded  in  order  that 
it  may  be  comprehensive. 


220  TRIAL  TACTICS. 

Cross-examination,  it  has  been  stated  before, 
admits  of  no  fixed  rules.  In  the  long  run  the 
practitioner  must  learn  for  himself  by  con- 
stant and  close  attention  ripened  by  experience. 
From  an  article  by  one  of  the  greatest  prosecu- 
tors in  New  York  City,  a  man  who  has  handled 
thousands  of  cases  and  who  has  given  some  val- 
uable matter  in  print  on  this  subject,  an  illus- 
tration may  be  taken  to  show  how  one  lawyer's 
method  may  seem  open  to  criticism  by  another 
practitioner. 

The  accused  had  put  up  a  false  defense  and 
an  attempt  was  being  made  to  break  it  down. 

"In  the  Kennedy  murder  case  in  which  Ken- 
nedy shot  and  killed  'Big  John'  Keating  the  is- 
sue hung  upon  threats  to  kill  Kennedy  which  it 
was  averred  had  been  publicly  made  by  Keating. 
A  friend  of  Kennedy's  testified  that  while  sit- 
ting in  a  barber  shop  he  had  heard  Keating  say 
that  he  would  kill  Kennedy  on  sight  and  had 
seen  him  show  a  revolver."  Here  were  the  two 
conditions,  memory  and  action.  The  prosecutor 
asked  this  witness,  "Were  you  a  friend  of  Ken- 
nedy's?" "Yes."  "Did  you  tell  him  about 
this  threat?"  "No."  Then  the  prosecutor 
said,  "Do  you  mean  to  say  that  hearing  such  a 
threat  against  a  dear  friend  of  yours,  seeing  him 
afterwards  you  said  nothing  whatever  about  it  ?" 
The  witness  was  in  such  a  false  position  that 


THE  CROSS-EXAMINATION.       221 

finally,  being  hopelessly  entangled,  he  asserted, 
"I  did  tell  him."  To  compel  the  witness  to  con- 
tradict himself  in  that  way  was  very  clever  but 
in  the  writer's  opinion  that  last  question  should 
not  have  been  asked.  When  the  witness  said 
that  he  heard  the  threat  against  his  friend  Ken- 
nedy and  when  he  said  that  he  did  not  tell  Ken- 
nedy about  it  the  prosecutor  should  have  stopped 
there  and  used  these  conflicting  statements  in 
the  final  argument.  As  it  was  he  gave  the  wit- 
ness an  opportunity  to  explain  and  it  was  only 
his  good  fortune  that  the  witness  was  not  wise 
enough  or  slippery  enough  to  avail  himself  of 
the  chance.  The  prosecutor  succeeded  in  this 
instance,  but  he  did  not  rest  there ;  he  went  still 
further.  According  to  the  account:  "This  de- 
stroyed this  prepared  lie  but  the  prosecutor,  on 
the  track  of  the  truth,  carried  him  further  and 
showed  that  at  the  time  he  told  Kennedy,  accord- 
ing to  his  evidence,  Kennedy  instead  of  being  at 
the  place  sworn  to  was  actually  locked  up  in  the 
Tombs." 

The  prosecutor,  then,  had  still  more  good  luck 
in  a  very  dangerous  and  needless  experiment 
because  if  this  witness  was  telling  a  lie  and 
wanted  to  go  on  with  it,  it  would  have  been  easy 
for  him  to  invent  a  plausible  explanation  of  his 
apparently  inconsistent  statements.  He  met  the 
man  frequently  at  various  times  and  places  and 


222  TRIAL  TACTICS. 

although  he  happened  to  stumble  on  a  date  when 
the  man  was  in  prison  it  was  not  an  irretrievable 
blunder,  because  witnesses  are  very  often  con- 
fused by  minor  matters  as  to  the  exact  date  when 
or  place  where  a  thing  happened.  So  the  last 
questions  though  they  happened  to  result  fortu- 
nately were  a  dangerous  experiment  and  a  need- 
less one  because  they  gave  the  witness  an  op- 
portunity to  explain  away  the  inconsistencies 
and  it  was  merely  a  fortunate  chance  that  he 
was  too  stupid  to  avail  himself  of  the  oppor- 
tunity. 

An  incident  occurred  in  a  recent  case  to  show 
the  unfavorable  results  that  sometimes  attend 
upon  questioning  a  witness  too  far.  The  wit- 
ness, according  to  his  account,  had  tramped 
through  the  night,  come  to  a  switch  station  and 
was  sitting  there  warming  himself  at  the  time 
of  an  accident.  He  was  brought  in  by  the  rail- 
road company  to  prove  that  a  certain  signal  was 
displayed  which  the  plaintiff  claimed  was  not  be- 
ing displayed  at  that  time  and  place.  The  wit- 
ness made  a  very  poor  impression  and  the  plain- 
tiff 's  attorney  should  have  allowed  him  to  be 
taken  at  his  face  value  because  the  jury  had  an 
idea  that  he  was  a  tramp  and  probably  thought 
tnat  he  had  been  bought  for  a  few  dollars  to 
come  in  and  tell  a  lie.  But  the  plaintiff's  at- 
torney, not  satisfied  with  that,  harassed  him 


THE  CROSS-EXAMINATION.       223 

with  questions  until  the  fellow  rallied  himself 
and  told  a  story  which  appealed  to  the  sympa- 
thies of  the  jury. 

The  story  he  told  was  that  he  had  come  from 
a  distant  point  to  go  out  to  a  farm  expecting  a  job 
out  there;  that  when  he  arrived  at  the  place  he 
found  somebody  had  reached  there  two  hours 
before  and  gotten  the  job  and  that  he  had  no 
money  left  except  a  few  cents  which  he  did  not 
want  to  pay  out  in  railroad  fare  because  he  did 
not  want  to  commence  begging  as  soon  as  he 
reached  the  city.  The  jury  got  the  impression 
that  he  was  a  pretty  good  sort  of  fellow  and 
believed  his  testimony.  That  was  another  case 
where  the  questions  went  a  step  too  far. 

After  the  witnesses  have  all  testified  it  is  some- 
times necessary  to  impeach  them,  to  attempt  to 
break  down  their  testimony,  showing  that  they 
are  not  to  be  believed  under  oath,  disclosing 
perhaps  that  they  have  been  convicted  of  crime 
somewhere,  or  something  else  that  reveals  their 
bad  characters.  But  this  also  is  a  dangerous 
experiment  which  must  not  be  tried  until  it  has 
been  calculated  just  what  the  result  is  apt  to  be. 
The  question  of  sympathy  is  always  a  great 
factor.  A  witness  may  have  made  a  poor  im- 
pression upon  the  jury,  but  if  sympathy  is 
aroused  for  him,  even  though  it  be  a  false  sym- 
pathy the  jury  may  turn  to  his  support. 


224          .        TRIAL  TACTICS. 

There  is  nothing  gained  in  attacking  a  wit- 
ness for  the  mere  satisfaction  of  attacking  him, 
though  a  client  usually  urges  his  lawyer  to  do 
that,  and  it  may  do  more  harm  than  good.  As 
a  general  rule  if  the  testimony  of  a  witness  is 
not  all-important  or,  though  it  is  important,  if 
it  can  be  safely  overcome  with  other  testimony 
stronger  than  his,  with  writings,  matters  of  pub- 
lic record,  etc.,  it  is  not  advisable  to  impeach  a 
witness's  character  or  veracity.  It  may  give 
false  sympathy  to  him ;  he  may  be  a  very  decent 
fellow.  And  it  is  especially  dangerous  if  the 
witness  happens  to  be  a  woman.  The  jury  may 
think  the  whole  fight  is  to  determine  the  char- 
acter of  a  particular  witness  and  if  there  is  sum- 
pathy  for  the  witness  they  will  decide  for  his 
side.  For  instance  to  prove  that  a  highly  re- 
spected and  well  known  witness,  when  he  was 
fifteen  years  old  committed  some  offense  and 
served  a  short  term  in  prison  will  often  cause 
the  jury  only  to  sympathize  with  him.  Even 
though  he  was  indiscreet  in  the  freshness  of 
youth  and  committed  some  offense,  or  though  he 
was  guilty  of  a  recent  offense  but  one  which  had 
some  mitigating  circumstances,  the  jury  will 
trust  him.  Of  course  if  the  witness  is  shown  to 
have  been  an  habitual  thief  the  jury  will  not  pro- 
tect him  because  this  indicates  a  dishonest  dis- 
position, but  if  it  is*  revealed  that  under  some 


THE  CROSS-EXAMINATION.      225 

great  excitement  or  provocation  a  witness  com- 
mitted an  act  of  violence,  the  jury  may  still  give 
full  credit  to  that  witness  and  to  his  testimony. 
An  illustration  of  the  danger  of  arousing  sym- 
pathy was  shown  in  a  recent  case.  A  nine  year 
old  child  had  been  killed  by  a  street-car.  He 
had  stumbled  off  the  platform  and  the  car  had 
run  over  him.  The  administrator,  the  plaintiff, 
had  only  one  witness  who  was  a  colored  boy 
about  sixteen  or  seventeen  years  old,  a  playmate 
of  the  deceased  child  who  also  had  been  on  the 
platform.  The  case  came  on  for  trial  and  this 
little  black  boy  was  brought  out  of  the  jail  to 
give  the  facts  for  the  plaintiff.  The  railroad 
company  had  the  advantage,  as  they  always 
have,  because  when  the  accident  happened  they 
went  through  the  cars  and  took  the  names  of 
the  passengers.  So  the  railroad  company  came 
with  at  least  ten  witnesses  each  one  giving  his  or 
her  version  of  the  matter.  They  probably  had 
enough  evidence  to  win  but  they  were  not  satis- 
fied ;  they  impeached  the  character  of  the  colored 
boy  and  asked  him  where  he  came  from  to  at- 
tend the  trial  and  he  answered  that  he  came  from 
the  county  jail.  They  asked  him  what  he  was 
doing  there  and  he  said  that  he  had  been  sent 
there  by  one  of  the  justices,  naming  the  justice. 
Things  looked  pretty  bad  for  the  plaintiff  but 
the  plaintiff's  attorney  asked  the  boy  just  two  or 


226  TKIAL  TACTICS. 

three  questions.  He  said,  "How  did  it  come 
that  you  were  sent  to  jail?"  "Well,"  he  said 
"I  took  an  old  overcoat.  It  was  an  awfully  cold 
day  and  I  thought  the  man  didn't  care  for  it." 
That  was  one  question.  "Who  prosecuted  you 
when  you  went  to  jail?"  "That  man  there," 
said  the  witness,  pointing  to  the  railroad  com- 
pany's lawyer.  The  jury  gave  the  highest  ver- 
dict that  had  ever  been  given  in  that  county  for 
the  death  of  a  child.  There  is  not  the  slightest 
doubt  that  they  would  have  given  a  moderate 
verdict — possibly  none — if  it  had  not  seemed  to 
the  jury  that  the  witness  was  being  unnecessa- 
rily assailed,  and  that  the  railroad  company's 
lawyer  had  prosecuted  him  just  to  destroy  his 
evidence  before  the  jury  on  this  trial. 

Of  course  there  are  instances  where  it  is  a 
lawyer's  duty  to  his  client  to  demolish  the  op- 
posing witness's  testimony,  to  show  that  he  is 
telling  lies.  But  he  must  be  very  sure  of  his 
ground,  sure  of  his  weapons  and  that  they  will 
not  act  as  do  boomerangs  when  thrown  by  the 
unskilled. 


CHAPTER  XIII. 

THE  INSTRUCTIONS. 
SPECIAL  FINDINGS  AND  SPECIAL  VERDICTS. 

IN  regard  to  instructions  the  practice  varies 
in  different  jurisdictions  and  in  different 
court  rooms  in  the  same  jurisdiction.    In 
some  places  instructions  must  be  offered  before 
the  case  commences;  in  others  they  are  offered 
after  the  case  is  closed.    A  lawyer  must  ac- 
quaint himself  with  the  practice  in  his  jurisdic- 
tion. 

Under  the  title  of  instructions  may  be  included 
holdings  of  law,  special  findings  and  special  ver- 
dicts. In  a  case  tried  before  the  court  without 
a  jury  the  instructions  are  called  propositions 
or  holdings  of  law,  which  the  lawyer  must  offer 
the  judge  for  him  to  establish  as  being  the  law 
of  the  case  or  reject  as  not  being  the  law  of  the 
case.  These  are  very  important  because  in  the 
absence  of  a  jury  the  judge  himself  is  the  jury 
and  if  he  finds  unfavorably  the  reviewing  court 
will  say  that  anything  that  he  found  is  conclu- 
sive unless  he  made  some  mistake  in  the  law  of 
the  case  for  he  saw  the  witnesses  and  had  a  right 

227 


228  TEIAL  TACTICS. 

to  believe  them.  The  reviewing  court  is  not 
justified  in  saying  that  he  made  some  mistake 
in  the  law  unless  he  has  been  asked  to  estab- 
lish the  law  in  these  holdings  or  propositions 
and  has  refused,  indicating  that  he  had  a  wrong 
theory  of  the  law  in  his  mind. 

In  special  findings  and  special  verdicts  the 
jury  is  asked  to  establish  certain  points  in  the 
case  specially,  not  simply  to  say,  "We  find  for 
the  plaintiff,"  or  "We  find  for  the  defendant," 
or  "We  find  the  defendant  guilty,"  or  "We  find 
the  defendant  not  guilty."  There  is  a  distinc- 
tion between  a  special  finding  and  a  special  ver- 
dict. The  special  finding  will  be  considered 
first. 

By  special  finding  is  meant  that  the  jury  is 
asked  to  establish  a  particular  fact.  In  some 
jurisdictions  they  allow  evidentiary  facts  to  be 
specifically  found;  in  other  jurisdictions  they 
allow  only  the  ultimate  facts  and  not  the  evi- 
dentiary or  detailed  facts  which  led  up  to  the 
ultimate  facts.  In  some  it  may  be  asked  that 
the  jury  show,  "Was  the  plaintiff  himself  at  the 
time  of  the  accident  in  question  in  the  exercise 
of  ordinary  care  on  his  part?"  which  the  jury 
will  answer  by  saying  yes  or  no.  But  in  the 
same  court  it  probably  could  not  be  asked  "Was 
the  plaintiff  when  he  approached  the  crossing 
of  A.  and  B.  streets  lashing  his  horse  and  mak- 


THE  INSTRUCTIONS.  229 

ing  it  go  at  a  gallop  T'  because  that  is  one  of  the 
subordinate  or  evidentiary  facts  which  go  ulti- 
mately to  show  that  he  was  not  in  the  exercise  of 
ordinary  care. 

In  Indiana,  for  example,  the  most  detailed 
facts  may  be  asked  and  the  verdict  might  be 
read  as  follows:  "We,  the  jury,  find  that  on  or 
about  four  o'clock  on  the  morning  of  the  15th 
of  April  the  plaintiff  was  driving  northerly  on 
the  A-B  highway  and  at  that  point  when  he  was 
about  seventy  yards  away  from  the  railway  track 
he  commenced  lashing  his  horses  vigorously," 
etc. 

If  special  findings  are  wanted  it  must  be  seen 
what  the  practice  is  in  regard  to  getting  them. 
In  some  places  for  instance  the  lawyer,  before 
the  argument  commences,  must  serve  upon  his 
opponent  a  list  of  the  special  questions  that  he 
is  going  to  have  the  jury  answer  and  perhaps 
give  a  copy  also  to  the  judge;  at  all  events  he 
must  give  his  opponent  a  copy.  The  reason  for 
this  is  that  the  opponent  has  a  right  to  know 
what  the  questions  are,  so  that  he  also  may  argue 
to  the  jury  what  in  his  view  the  evidence  indi- 
cates on  them. 

Whether  or  not  it  is  advisable  to  put  these 
special  questions  or  under  what  circumstances  it 
is  advisable  to  put  them  is  a  subject  for  consid- 
eration. The  question  may  first  be  viewed  from 


230  TRIAL  TACTICS. 

the  standpoint  of  the  defense.  There  are  times 
when  the  defense  ought  to  ask  special  findings 
and  other  times  when  the  defense  should  not  ask 
special  findings.  Suppose  the  common  injury 
case  in  which  a  railroad  company  is  sued  for 
damages.  The  plaintiff  was  driving  his  wagon 
across  the  track  on  the  public  highway  and  the 
train  struck  and  injured  him.  There  are  three 
counts  in  the  declaration,  first  that  the  defend- 
ant company  was  running  this  train  at  the  rate 
of  30  miles  an  hour  whereas  the  ordinance  at 
that  time  required  that  it  run  no  faster  than  ten 
miles  an  hour;  second,  that  they  were  running 
without  a  bell  or  whistle  sounding,  which  were 
required  by  the  law ;  and  third,  that  they  did  not 
have  a  flagman  there  to  warn  people  when 
driving  towards  the  tracks.  It  may  be  seen  at  a 
glance  that  in  this  case  the  defendant  ought  to 
ask  special  findings.  The  evidence  being  all  in, 
four  of  the  jurors  may  think  that  the  train  was 
going  thirty  miles  an  hour ;  the  other  eight  may 
think  it  was  going  only  five  miles  an  hour.  Four 
other  jurors  may  think  the  bell  was  not  ringing 
and  the  whistle  not  sounding;  the  other  eight 
may  think  the  bell  was  ringing  and  the  whistle 
was  sounding.  Again  another  four  of  the  jurors 
may  think  the  flagman  was  not  there  and  the 
other  eight  think  he  was  there.  So  if  special 
findings  have  not  been  asked  for,  all  twelve  of 


THE  INSTRUCTIONS.  231 

the  jurors  vote  guilty  though  each  one  acts  from 
an  entirely  different  reason.  If  however  the  de- 
fendant's attorney  has  asked  the  jury  to  find 
specially  on  the  three  questions;  as  to  the  rate 
of  speed  of  the  train,  whether  the  bell  was  ring- 
ing and  whether  the  flagman  was  there,  when 
these  disagreements  on  the  special  questions 
come  up  either  the  verdict  will  be  for  the  defend- 
ant or  there  will  be  a  hung  jury.  So  it  would  be 
a  great  mistake  under  these  circumstances  for 
the  defendant  not  to  ask  special  findings.  Also 
the  advantage  that  the  plaintiff  has  in  the  last 
speech  to  the  jury,  especially  if  he  is  a  powerful 
advocate  and  appeals  to  their  emotions  is  some- 
what diminished  if  the  jury  must  stop  to  delib- 
erate and  analyze. 

If  the  plaintiff,  on  the  other  hand,  has  a  case 
which  practically  proves  itself  and  the  defense 
is  double  or  treble, — if  there  are  two  or  three 
propositions  by  way  of  defense, — the  plaintiff 
should  ask  for  special  findings.  For  example 
one  defense  may  be  that  the  plaintiff  settled  the 
case  and  gave  a  release,  and  another  defense 
may  be  that  the  defendant  did  not  own  the  rail- 
road train  in  question.  These  two  rather  di- 
vergent ones  may  be  taken  for  the  sake  of  sim- 
plicity. Six  of  the  jury  may  believe  that  the 
plaintiff  gave  the  release  and  if  they  so  believe 
they  must  find  for  the  defendant.  The  other  six 


232  TRIAL  TACTICS. 

may  not  believe  that  but  they  may  believe  that 
the  defendant  did  not  own  the  railroad,  a  ques- 
tion which  was  involved  in  the  inquiry,  so  they 
must  find  the  defendant  not  guilty.  And  so  as 
before  the  first  six  may  say  not  guilty  because 
they  believe  there  was  a  settlement,  and  the  other 
six  say  not  guilty  because  they  believe  there  was 
no  liability  at  all.  If  however  the  plaintiff  had 
put  special  questions  they  would  disagree  and 
the  plaintiff  would  get  at  least  a  hung  jury  if 
they  failed  to  reconcile  on  one  question  or  on 
the  other.  At  least  he  would  have  a  better 
chance  than  if  there  were  no  separate  questions 
in  which  case  they  would  all  say  "Not  guilty," 
though  six  answered  from  one  motive  and  the 
other  six  from  a  different  motive. 

Special  findings  is  only  another  example  of 
the  old  truth  "Divide  and  conquer,"  commonly 
illustrated  by  the  bundle  of  fagots,  which  tied 
tightly  together  cannot  be  broken,  but  one  at  a 
time  can  be  readily  snapped. 

A  special  verdict  is  different  from  a  special 
finding.  It  is  applicable  to  civil  cases  as  well  as 
to  criminal  cases  but  it  is  more  common  in  crim- 
inal cases.  A  special  verdict  is  a  verdict  on 
each  count  of  the  declaration  or  indictment. 
For  instance  in  a  criminal  case,  a  man  is  in- 
dicted for  stealing  a  horse  and  the  prosecutor,  to 
make  the  matter  safe,  puts  five  counts  in  the  in- 


THE  INSTRUCTIONS.  233 

dictment,  not  knowing  precisely  which  one  will 
be  fitted  by  the  evidence.  The  defendant  has  a 
right  to  ask  a  verdict  on  each  count  separately : 
"We  the  jury  as  to  the  first  count  find  the  de- 
fendant not  guilty."  "We  the  jury  as  to  the 
second  count  find  the  defendant  guilty,"  or  "Not 
guilty,"  and  so  on.  He  may  possibly  be  guilty 
under  all  five  of  the  counts  because  each  one  of 
them  might  fit  the  particular  case.  Of  course 
he  could  receive  only  one  punishment  as  it  is 
the  same  thing  although  described  in  different 
ways;  but  they  may  find  him  guilty  under  the 
special  counts. 

In  a  civil  case,  the  case  of  the  railroad  com- 
pany, with  three  counts — that  the  train  was  run- 
ning too  fast,  that  there  was  no  bell  ringing,  and 
that  there  was  no  flagman  at  the  crossing,  the  de- 
fendant may  be  guilty  under  two  counts.  It 
may  be  true  that  the  cars  were  going  too  fast, 
and  that  they  had  no  bell.  The  defense  may  ask 
for  a  separate  verdict  on  each  count  and  then 
the  verdict  would  be,  "We  the  jury,  on  the  first 
count  of  the  declaration  find  the  defendant 
guilty."  "We  the  jury,  on  the  second  count 
of  the  declaration  find  the  defendant  guilty. ' '  It 
may  be  that  they  actually  had  a  flagman  there 
or  that  at  least  this  statement  was  not  disproved 
and  so  they  would  follow  with,  "We  the  jury,  on 
the  third  count  of  the  declaration  find  the  de- 


234  TRIAL  TACTICS. 

fendant  not  guilty."  " And  we  assess  the  plain- 
tiff's damages  at  $7,000." 

The  request  for  separate  verdicts  may  come 
by  a  request  for  an  instruction  as  to  the  form  of 
the  verdict,  and  if  so  it  may  come  with  the  other 
instructions  after  all  the  arguments  are  closed, 
if  that  is  the  practice  on  instructions,  and  need 
not  be  put  like  special  findings  of  facts  before 
the  arguments  are  commenced,  even  if  that  is 
the  practice  as  to  special  findings. 

In  a  special  finding  in  the  Illinois  practice 
only  a  definite,  ultimate  question  may  be  asked 
and  one  that  can  be  readily  answered  by  yes  or 
no,  though  there  are  times  when  a  question  may 
possibly  be  asked  that  can  be  answered  in  some 
other  way.  It  might  be  possible  that  the  jury 
would  be  required  to  answer  this  question,  "At 
what  rate  of  speed  was  the  train  going  at  such 
a  time  and  such  a  place?"  Some  courts  allow 
this,  and  the  jury  might  answer  the  rate  of 
speed.  This  is  a  thing  much  discussed  but 
which  probably  would  not  be  deemed  an  ultimate 
fact.  The  ultimate  fact  would  be  whether  the 
train  was  violating  the  speed  ordinance,  and  the 
question  can  be  put  directly,  "Was  the  train  at 
the  time  indicated  going  in  excess  of  thirty  miles 
an  hour?"  that  being  the  rate  stated  in  the  or- 
dinance, and  the  jury  will  answer  yes  or  no. 

How  to  put  instructions  must  be  well  under- 


THE  INSTRUCTIONS.  235 

stood,  especially  by  counsel  for  the  plaintiff  be- 
cause if  he  gets  a  verdict  he  wants  it  to  be  sus- 
tained, and  if  his  instructions  are  not  accurate 
the  verdict  will  be  set  aside  either  by  the  trial 
court  or  by  the  reviewing  court.  The  advice  is 
sometimes  given  that  it  is  the  safest  thing  for 
the  plaintiff  not  to  ask  any  instructions  at  all, 
which  may  be  applicable  where  the  plaintiff  has 
a  very  strong  case,  one  that  is  carried  by  the  ar- 
gument, but  good  cases  for  the  plaintiff  have 
been  lost  where  the  plaintiff  offered  no  instruc- 
tions and  where  the  defense  came  in  with  a  se- 
ries of  very  strong  instructions.  The  plaintiff's 
attorney  made  an  able  and  convincing  argument 
but  the  court  practically  made  the  last  speech  by 
reading  the  instructions,  which  seemed  to  the 
jury  like  a  strong  argument  for  the  defendant. 
"Then  and  under  such  circumstances  your  ver- 
dict will  be  not  guilty,"  or  "This  and  that,  A.  B. 
plus  C.  D.  and  then  your  verdict  will  be  not 
guilty."  After  the  court  had  said  this  fifteen 
or  twenty  times  the  jury  had  forgotten  nearly  all 
the  speech  of  plaintiff  attorney  and  found  for 
the  defendant  because,  as  a  juror  afterward 
when  asked  explained,  "All  the  law  was  with 
the  defendant,  the  judge  told  us  everything  for 
the  defendant  but  the  plaintiff  had  no  law ;  how 
could  we  find  for  him  ?  "  If  there  are  a  few  good 
instructions  for  the  plaintiff — even  if  they  cover 


236  TRIAL  TACTICS. 

only  the  rules  for  computing  the  plaintiff's  dam- 
ages, when  the  jury  read  them  they  say,  "Why, 
the  plaintiff  has  a  case  here." 

Of  course  if  a  lawyer  does  not  know  how  to 
draw  instructions  it  is  better  not  to  attempt 
them.  He  cannot  always  copy  an  instruction 
just  because  he  has  found  it  approved  even  by 
the  supreme  court,  because  sometimes  the  next 
case  with  the  same  instruction  is  reversed  and 
if  it  is  argued  that  it  was  approved  of  last  year 
they  may  say  that  the  point  of  objection  that 
is  now  being  argued  was  not  at  that  time  urged 
by  the  lawyers  trying  that  case.  So  he  must 
know  the  law  when  he  deals  in  it  or  tries  to  ap- 
ply it.  The  instruction  in  the  particular  case 
under  the  circumstances  of  that  particular  case 
may  be  a  very  sound  one,  whereas  the  same  in- 
struction in  another  case  may  be  unsound. 

Care  must  be  taken  in  regard  to  the  indirect 
effect  of  an  instruction.  In  the  railroad  case 
for  instance  with  the  three  counts  in  the  decla- 
ration suppose  there  is  no  evidence  at  all  about 
the  speed  of  the  train.  The  defendant's  at- 
torney is  entitled  to  an  instruction  and  if  he  asks 
it  the  court  will  give  it,  "The  jury  is  instructed 
that  there  is  no  evidence  sustaining  the  first 
count  in  the  declaration."  That  is  the  count 
which  relates  to  the  violation  of  the  speed  law 
and  therefore  the  jury  is  not  allowed  to  con- 


THE  INSTRUCTIONS.  237 

sider  that  count  and  cannot  find  the  defendant 
guilty  on  that  count.  The  defendant's  attorney 
may  think  he  has  made  a  good  move,  but  there 
is  a  doubt  about  its  advisability  because  to  ask 
the  jury  to  throw  out  one  count  seems  to  them 
almost  equivalent  to  acknowledging  the  defend- 
ant guilty  on  the  other  counts.  The  jury  thinks, 
"The  court  throws  out  one  count  but  doesn't 
that  leave  the  other  two  counts!"  These  men 
were  never  in  a  court  room  before ;  none  of  them 
know  what  is  understood  by  jurisprudence  or  a 
technical  system  of  right  and  wrong.  They  are 
ordinary,  commonplace  men  of  only  a  general 
understanding  and  they  draw  the  natural  deduc- 
tion that  the  exclusion  of  one  thing  assumes  the 
inclusion  of  the  other.  At  all  events  the  def  end- 
ant  's  attorney  would  have  a  good  deal  of  trouble 
in  explaining  to  the  jury  that  merely  because 
they  are  told  not  to  find  on  the  first  count  it  does 
not  follow  that  they  must  find  on  the  second  and 
third ;  that  it  means  only  that  those  are  open  for 
argument  and  that  he  now  proposes  to  argue  and 
show  tliem  that  they  should  not  find  on  the  sec- 
ond or  third.  He  has  assumed  an  extra  burden. 
Possibly  this  would  be  the  solution  of  the  dif- 
ficulty. "When  the  defendant  asks  for  and  gets 
the  instruction  that  the  jury  cannot  find  on  the 
first  count,  there  being  no  evidence,  it  might  be 
well  for  the  defendant  to  ask  another  instruc- 


238  TRIAL  TACTICS. 

tion — though  it  is  not  certain  that  he  is  entitled 
to  it — that  the  mere  fact  that  the  court  has  in- 
structed the  jury  that  there  is  no  liability  as  to 
a  certain  count  in  the  declaration  does  not  imply 
that  there  is  or  is  not  a  liability  on  the  other 
counts.  It  means  simply  that  those  counts  are 
still  for  the  consideration  of  the  jury  under  the 
evidence  and  the  law  as  given  in  the  instruc- 
tions. 

The  plaintiff  should  ask  an  instruction  as  to 
the  amount  of  the  damages.  The  defense  should 
ask  an  instruction  that  no  damages  can  be  re- 
covered except  through  a  preponderance  of  the 
evidence  and  can  always  obtain  another  instruc- 
tion, namely :  that  the  fact  that  the  court  has  ad- 
vised them  how  to  compute  damages  does  not 
imply  that  they  must  give  damages,  that  it  is 
merely  the  way  to  estimate  the  amount,  and  that 
the  jury  must  still  determine  from  the  evidence 
and  the  other  instructions  whether  there  is  or 
is  not  any  guilt  at  all  in  order  to  get  to  the  point 
where  they  could  give  damages.  Without  that 
secondary  instruction  the  jury  often  thinks  that 
because  they  are  informed  as  to  how  to  compute 
the  damages  all  they  have  to  do  is  to  go  out  and 
compute  the  damages.  They  take  that  instruc- 
tion as  an  indication  of  liability. 

A  pertinent  case  on  special  findings  was  a  re- 
cent suit  on  an  insurance  policy.  The  deceased 


THE  INSTRUCTIONS.  239 

was  found  dead,  shot  through  the  head.  If  he 
was  sane  when  he  killed  himself  the  policy  could 
not  be  collected,  but  if  he  was  insane  he  was  not 
responsible  for  killing  himself  and  the  policy 
could  be  collected.  Only  in  case  he  was  sane 
and  killed  himself  could  the  policy  not  be  col- 
lected. There  the  special  findings  would  be, 
"Was  the  man  sane?"  "Was  he  killed  by  the 
accidental  discharge  of  the  gun?  '  Six  jurors 
might  believe  that  he  was  insane  and  that  would 
induce  them  to  vote  for  the  plaintiff.  Six  other 
jurors  might  believe  he  was  perfectly  sane  but 
that  his  death  was  an  accident,  and  that  would 
induce  them  to  vote  for  the  plaintiff.  At  all 
events  in  such  a  case  special  findings  should  be 
asked.  The  defense  requires  all  twelve  of  the 
jury  to  unite  on  one  proposition  and  by  asking 
for  special  findings  the  defense  compels  them  to 
do  so,  or  to  disagree.  In  this  case  the  defend- 
ant's attorney  failed  to  ask  for  a  special  finding 
and  the  jury  went  out  and  found  for  the  plain- 
tiff though  as  was  afterwards  shown  the  twelve 
jurors  did  not  get  the  same  idea  or  act  from  the 
same  motives. 

The  subject  of  peremptory  instructions  may 
be  considered,  by  which  is  meant  that  when  the 
plaintiff  has  put  in  his  case  and  the  defendant 
believes  that  the  plaintiff's  evidence  does  not 
make  a  case  at  all  the  defendant  asks  the  court 


240  TRIAL  TACTICS. 

at  that  point  to  instruct  the  jury  in  a  peremp- 
tory manner  to  find  for  the  defendant.  It  is 
not  always  advisable  to  ask  that  instruction  at 
the  end  of  the  plaintiff's  case.  Of  course  if  the 
defendant's  own  testimony  is  of  such  a  nature 
that  there  is  danger  that  some  of  the  points 
which  it  may  develop  may  strengthen  the  plain- 
tiff's  case  it  is  well  for  the  defendant  to  ask  for 
the  peremptory  instruction  at  the  end  of  the 
plaintiff's  case;  but  if  there  is  no  danger  that 
the  defendant's  testimony  may  aid  the  plain- 
tiff and  if  it  is  altogether  towards  defeating  the 
plaintiff's  case,  then  it  is  the  part  of  wisdom  not 
to  ask  for  the  peremptory  instruction  until  the 
end  of  the  defense  for  the  following  reason.  At 
the  end  of  the  plaintiff's  case  the  judge,  though 
it  seems  to  him  that  the  plaintiff  has  no  case, 
is  in  doubt ;  it  is  an  arbitrary  action  for  him  to 
take  a  case  from  the  jury,  to  interfere  with  the 
function  of  the  jury  and  to  direct  them  what 
their  verdict  shall  be.  So  although  the  plain- 
tiff's evidence  may  be  weak  the  judicial  intellect 
balances  in  favor  of  the  rights  of  the  jury  and 
the  judge  is  very  apt  to  refuse  the  instruction,  to 
say,  "The  plaintiff  has  enough  case  here  to  go  to 
the  jury,"  and  to  require  the  defendant  to  go  on 
with  his  defense.  Furthermore,  in  some  juris- 
dictions, as  soon  as  the  defense  goes  on  with  its 
case,  it  waives  the  right  to  object  in  the  review- 


THE  INSTBUCTIONS.  241 

ing  court  or  to  raise  as  error  in  the  reviewing 
court  the  action  of  the  trial  court  in  refusing  the 
peremptory  instruction.  So  the  defense  has 
gained  nothing  by  the  refusal  and  cannot  even 
claim  it  as  an  error  in  the  reviewing  court.  On 
the  other  hand  the  defense  has  compelled  the 
court  to  exercise  his  judicial  intellect  against  the 
defense  and  as  a  psychological  fact  it  is  difficult 
for  him  afterwards  to  come  back  and  say  that 
there  is  no  case  for  the  plaintiff ;  whereas  if  the 
court  had  not  been  asked  at  that  point  for  a  per- 
emptory instruction  but  had  heard  a  strong,  con- 
vincing defense  the  judicial  intellect,  which  was 
already  wavering  at  the  end  of  the  plaintiff's 
case  would  be  carried  clear  for  the  defense  and 
the  judge  would  instruct  for  the  defendant. 

Again  if  the  motion  is  asked  at  the  end  of  the 
plaintiff's  case  and  denied,  the  jury  gets  the 
idea  that  the  court  thinks  there  is  a  case  for  the 
plaintiff  and  they  will  carry  that  impression  to 
the  end.  Even  though  the  jury  is  excluded 
from  the  court  room  while  the  matter  is  being 
argued  they  may  know  exactly  what  is  going  on 
because  they  are  in  attendance  at  the  court  and 
have  been  in  the  room  while  other  similar  cases 
were  being  argued. 

There  is  one  more  point  against  asking  for 
peremptory  instructions  too  soon.  Suppose  the 
defendant  is  very  fortunate  and  at  the  end  of  the 


242  TRIAL  TACTICS. 

plaintiff's  case  the  motion  is  granted.  The 
court  instructs  for  the  defendant,  there  is  a  ver- 
dict and  judgment  for  the  defendant.  The 
plaintiff's  evidence  has  all  been  preserved  at  that 
point.  The  case  then  goes  to  the  upper  court,  is 
reversed  and  comes  back  for  a  new  trial.  The 
plaintiff's  evidence  has  been  taken  and  can  be 
used  again  though  his  witnesses  may  be  gone, 
but  the  defendant's  evidence  has  not  been  taken. 
So  as  a  mere  practical  safeguard  the  defendant 
should  be  glad  to  put  his  evidence  in  and  then 
ask  for  a  peremptory  instruction  for  the  de- 
fense. Then  if  the  case  goes  up  and  is  reversed 
and  if,  as  sometimes  happens  it  comes  back  five 
or  six  years  afterwards  to  be  tried  over  again 
the  defense  is  on  an  equal  footing  with  the  plain- 
tiff. 

The  objections  and  the  exceptions  in  the  va- 
rious practices  must  be  learned  from  the  books. 
If  the  opponent  has  instructions  which  are  not 
satisfactory  the  practice  differs  very  greatly. 
For  instance  in  some  courts  the  exceptions  must 
be  filed  and  the  motion  for  a  new  trial  argued 
and  if  it  is  shown  that  the  opponent's  instruc- 
tions are  wrong  a  new  trial  can  be  obtained.  In 
other  courts  the  exceptions  to  the  instructions 
must  be  taken  before  the  jury  leaves  the  room. 
The  opposing  counsel  must  listen  to  the  instruc- 
tions, then  step  to  the  bar  and  object  to  them 


THE  INSTRUCTIONS.  243 

before  the  jury  retires  to  consider  of  their  ver- 
dict, this  gives  the  court  an  opportunity  to  cor- 
rect the  error  immediately ;  if  the  attorney  fails 
thus  to  object  he  waives  the  error. 


CHAPTER  XIV. 

THE  ARGUMENTS. 

SIMPLE,  direct  language  should  be  used  in 
the  arguments.  It  must  be  remembered 
that  the  jurors  are  seldom  men  of  more 
than  average  mentality  and  that  intricacies  of 
speech  and  rhetoric  tend  only  to  confuse  them 
and  becloud  in  their  minds  the  main  issues.  As 
a  general  rule  the  less  pretentious  and  erudite 
the  English  employed,  the  more  convincing  and 
effective  will  the  arguments  be.  A  few  other 
suggestions  may  also  be  offered  which  though 
not  invariably  applicable  will  be  found  ad- 
vantageous in  the  great  majority  of  instances. 

If  suppositions  are  made  the  supposition  must 
be  complimentary  not  derogatory  to  the  audi- 
ence. Assuming  that  the  accused  committed  a 
forgery  or  stole  a  horse  or  beat  his  wife  it  is 
not  well  to  say,  "Gentlemen  of  the  jury  if  one 
of  you  should  be  charged  with  beating  your 
wife,"  or  "If  one  of  you  should  be  accused  of 
committing  a  forgery,"  but  it  is  better  to  say, 
"If  one  of  you  jurors  should  see  a  man  beating 
his  wife."  Jurors  are  very  easily  offended  by 
tactlessness  in  that  regard. 

244 


THE  ARGUMENTS.  245 

As  a  mere  matter  of  policy  it  is  best  to  be  hon- 
est with  the  jury  for  they  are  quick  to  detect 
sham.  The  fundamental  principles  of  right  and 
wrong  that  they  all  can  understand  must  be  ad- 
hered to.  If  there  is  an  exception  upon  which 
the  advocate  relies  he  must  see  that  the  jury 
clearly  understands  it.  If,  for  instance,  he  re- 
lies upon  the  statute  of  limitations  he  must  see 
that  the  jury  understands  that  there  is  reason 
and  justice  in  the  statute  of  limitations.  Other- 
wise they  will  think  it  merely  a  shrewd  techni- 
cality and  will  disregard  it. 

In  many  jurisdictions  the  time  for  argument 
is  greatly  limited.  The  court  has  been  known 
to  limit  the  argument  in  which  the  death  of  a 
human  being  was  involved,  to  ten  minutes  on 
each  side,  although  it  was  undoubtedly  an  out- 
rageous thing  to  do  and  would  perhaps  have 
been  found  to  be  error.  But  in  such  a  case  nec- 
essarily time  must  be  spent  only  on  the  essential 
points  and  those  of  less  importance  must  be 
omitted. 

Much  has  already  been  said  about  the  advan- 
tage of  having  the  closing  speech.  If  a  lawyer 
has  not  the  last  speech  he  must  anticipate  what 
his  opponent  will  say  in  answer  and  he  must  be 
careful  to  leave  no  vulnerable  points  and  espec- 
ially careful  to  say  nothing  which  may  be  sub- 
jected to  ridicule.  If  a  speech  is  successfully 


246  TRIAL  TACTICS. 

and  properly  ridiculed  by  the  opponent's  last 
speech  the  entire  effect  of  the  argument  has 
been  lost  upon  the  jury.  Of  course  the  lawyer 
who  has  the  last  speech  may  take  more  liberty 
because  there  is  nobody  to  contradict  him,  no- 
body to  expose  the  fallacy  of  his  argument,  but 
even  then  he  must  be  fair  because  if  he  is  un- 
fair the  jury  will  notice  it  and  if  they  think  that 
he  is  trying  to  advance  an  unjust  argument  they 
probably  will  defeat  him. 

It  must  not  be  forgotten  either  that  the  posi- 
tion which  has  the  first  and  last  evidence  and 
consequently  the  first  and  last  speech  has  also 
a  corresponding  burden,  namely  the  burden  of 
proof.  The  jury  will  be  instructed  to  this  ef- 
fect and  the  opponent  will  probably  lay  much 
emphasis  upon  it.  He  will  insist  with  great  ve- 
hemence that  the  plaintiff  has  the  burden  of 
proof,  and  he  must  sustain  it  by  a  preponder- 
ance of  the  evidence,  which  frequently  impresses 
the  jury  greatly,  and  he  will  reverberate  the 
word  "pre-pon-der-r-r-ance"  adown  the  corri- 
dors of  the  Court  House,  as  though  the  very 
term  itself  weighed  a  ton. 

But  this  " preponderance  of  the  evidence," 
and  "the  burden  of  proof ,"  is  not  an  alarmingly 
serious  matter  because  as  has  been  already  indi- 
cated, where  much  sympathy  is  with  one  side  or 
the  other,  the  jury  does  not  as  a  rule  stop  to 


THE  ARGUMENTS.  247 

count  witnesses  or  to  nicely  weigh  their  evi- 
dence. They  act  upon  their  general  convictions 
of  the  abstract  right  in  the  case.  So  it  is  well 
to  claim  the  first  and  last  speech  even  subject  to 
the  apparent  burden  of  the  preponderance  of  the 
evidence.  It  is  a  double  advantage  if  the  op- 
ponent has  the  burden  of  proof,  in  an  affirmative 
defense  for  instance,  and  the  plaintiff  can  still 
keep  the  first  and  last  speech. 

Even  the  lawyer  with  the  last  speech,  how- 
ever, must  anticipate  that  the  court  is  going  to 
charge  the  jury,  and  in  general  what  he  will  say. 
For  instance  an  instruction  is  very  apt  to  be 
given  that  preponderance  of  the  evidence  de- 
pends not  alone  upon  the  number  of  the  wit- 
nesses but  upon  the  credibility  of  the  witnesses 
and  other  circumstances  in  the  case.  That  is  a 
very  important  instruction  for  a  lawyer  who 
happens  to  have  two  witnesses  against  his  oppo- 
nent 's  six  and  he  should  not  only  see  that  it  gets 
into  the  case  but  should  argue  upon  it  and  im- 
press upon  the  jury  the  reason  why  the  two  wit- 
nesses may  be  as  strong  as  the  six.  The  jury 
generally  pays  attention  to  the  utterances  of  the 
court  because  they  understand  that  the  court  is 
impartial  and  is  endeavoring  to  do  his  duty  to 
both  sides. 

The  argument  should  be  emphatic  when 
needed  but  not  emphatic  throughout.  Many 


248  TRIAL  TACTICS. 

speakers  make  themselves  tiresome  by  continual 
over-emphasis.  Jurors  have  been  heard  to  com- 
plain that  they  were  tired  out  by  the  lawyer's 
shouting.  The  general  argument  should  be  in 
an  ordinary  conversational  tone  with  emphasis 
only  on  the  important  points.  Unjust  abuse  on 
the  part  of  a  speaker,  either  of  the  opponent's 
lawyer  or  of  the  witnesses  or  of  anyone  else  us- 
ually results  only  in  raising  sympathy  for  the 
object  of  abuse  in  the  jury.  But  if  rebuke  is 
merited  so  that  there  is  not  the  slightest  doubt 
of  its  justice  it  should  be  given  emphatically  and 
directly.  Even  then  the  retaliatory  possibilities 
of  the  last  speech  must  be  considered  because, 
no  matter  how  just  the  chastisement,  if  the  op- 
ponent follows  he  may  be  able  to  put  the  matter 
in  such  a  light  as  to  make  it  appear  that  a  vic- 
tim has  been  undeservedly  abused.  Even  when 
a  rebuke  is  called  for  it  is  seldom  safe  to  repri- 
mand one  who  will  inherently  arouse  sympathy, 
for  instance,  a  cripple  or  a  woman,  or  even  a 
drunkard. 

Frequently  the  advice  is  given  a  lawyer  to 
address  himself  to  one  juror,  to  pick  out  one 
strong  man  in  the  jury  box  and  convince  him  be- 
yond question,  relying  upon  him  to  carry  the 
other  jurors.  It  is  barely  possible  that  this  is  a 
good  plan  for  the  defense  to  follow  because  it 
may  result  in  a  hung  jury,  but  as  a  general  rule 


THE  ARGUMENTS.  249 

it  is  not  advisable  for  the  plaintiff,  for  even  if 
that  one  man  is  convinced  and  made  the  advo- 
cate with  the  jury  it  will  make  the  other  jurors 
jealous,  feeling  that  they  have  been  slighted  and 
the  chances  are  that  it  would  do  more  harm  than 
good.  The  plaintiff  must  have  the  whole  twelve 
jurors  and  not  one. 

Care  must  be  taken  not  to  couple  a  weak  argu- 
ment with  a  strong  one.  If  a  weak  argument 
and  a  strong  one  are  joined  the  opponent  will 
cast  ridicule  upon  the  weak  argument  to  such 
an  extent  that  the  jury  will  ignore  the  strong 
one.  They  will  forget  it  and  in  a  general  way 
get  the  impression  that  the  entire  speech  and 
that  side  of  the  case  are  weak.  If  there  is  a 
good,  clear,  strong  point  that  and  nothing  else 
should  be  insisted  upon  and  emphasized  to  the 
jury.  They  will  take  that  with  them  into  the 
jury  room  and  even  if  the  opponent  has  the  last 
speech  he  will  not  be  able  to  overcome  it.  But 
if  two  arguments  are  put  in,  a  strong  one  and  a 
weak  one,  the  opponent  will  gloss  over  the  strong 
one  and  emphasize  the  inaptness  of  the  weak 
one  until  the  jury  will  retire  to  the  jury  room 
with  the  impression  that  that  side  of  the  case  has 
no  argument  at  all. 

In  the  main  part  of  the  argument  where  time 
permits  a  general  outline  should  first  be  given 
of  the  matter  to  convince  the  jury  of  the  gen- 


250  TRIAL  TACTICS. 

era!  principles  of  right  on  which  the  claim  is 
based.  Then  the  particular  facts  and  law  of  the 
particular  contention  should  be  applied.  They 
must  first  be  given  a  clear  idea  that  what  is  asked 
for  is  just  in  order  to  prepare  the  ground  for 
the  subsequent  argument. 

In  criminal  cases  for  instance  the  defendant's 
attorney  may  with  profit  dwell  upon  the  consti- 
tutional guarantees  which  surround  the  accused, 
upon  the  fact  that  the  prosecution  must  prove 
guilt  beyond  a  reasonable  doubt  and  upon  simi- 
lar propositions,  explaining  the  importance  of 
each  and  showing  that  they  are  not  merely  tech- 
nical but  also  equitable.  The  prosecution  on  the 
other  hand  will  dwell  upon  the  necessity  of  ad- 
ministering and  enforcing  the  law  as  the  only 
means  of  protecting  the  public  in  property  and 
in  person. 

In  a  will  controversy  the  contestants  may 
speak  of  the  injustice  of  disinheriting  the  wife 
or  children  who  have  by  a  lifetime  of  assistance, 
of  self-denial  and  economy  aided  the  testator  in 
accumulating  the  estate,  while  the  proponents  on 
the  other  hand  may  dwell  upon  the  importance 
of  the  power  of  disinheriting.  They  will  show 
that  it  stands  as  an  inducement  to  the  direct 
heirs  to  treat  the  testator  kindly  and  properly, 
if  not  actuated  by  affection  at  least  under  fear 
of  disinheritance,  for  filial  gratitude  and  devo- 


THE  ARGUMENTS.  251 

tion  alone  are  not  always  sufficient  to  insure  re- 
spect and  attention. 

To  a  layman,  particularly  the  small  wage 
earner  the  demand  by  a  plaintiff  for  a  brokerage 
" commission"  of  a  large  amount,  say  $50,000, 
especially  where  the  negotiations  were  carried 
through  in  a  comparatively  short  period  seems 
so  enormous  that  his  mind  must  be  thoroughly 
prepared  in  advance  for  a  comprehension  of  the 
merits  and  the  justice  of  the  demand.  It  should 
be  pointed  out  to  him  that  a  broker  is  not  like  a 
merchant  or  a  professional  man ;  that  these  have 
a  somewhat  steady  stream  of  daily  business,  the 
moderate  profits  from  which  pay  the  current 
expenses  and  yield  the  net  profit.  But  the 
broker,  while  under  a  similar  current  expense 
may  have  but  an  occasional  success  in  his  nego- 
tiations and  long  periods  must  intervene  in 
which  he  has  no  income  whatsoever,  hence  the 
necessity  and  consequently  the  justice  of  the 
larger  compensation  on  the  successful  negotia- 
tion. Moreover,  the  party  who  benefits  from  the 
broker's  efforts  is  in  this  way  and  this  way  only 
enabled  to  find  a  market  at  perhaps  a  very  great 
profit  for  his  large  holdings.  Unless  he  were 
through  the  agent  to  dispose  of  them  or  even 
to  carry  them  further,  he  might  be  deprived  of 
them  at  a  ruinous  sacrifice. 

The  contestant  who  has  the  closing  speech 


252  TRIAL  TACTICS. 

should  first  demolish  his  opponent's  argument 
and  get  it  out  of  the  way,  and  then  build  up  his 
own  argument  so  that  the  jury  will  retire  with 
the  strength  of  it  the  last  thing  in  their  minds. 

When  one  has  the  intermediate  speech,  as  has 
been  said  before,  he  must  anticipate  everything 
that  his  opponent  is  apt  to  say  so  that  the  jury 
will  have  some  answer  to  it  when  he  does  say  it. 
In  addition  he  must  call  attention  to  the  fact  that 
the  opponent  does  speak  last  and  of  the  great  ad- 
vantage that  this  gives  him.  As  the  great  ma- 
jority of  humanity  loves  fair  play  the  jury 
should  be  given  to  understand  that  it  would  have 
been  the  part  of  fairness  for  the  opponent  to 
have  advanced  in  his  first  argument  every  prop- 
osition that  he  expects  to  advance  in  his  last  ar- 
gument and  that  it  would  not  be  fair  for  him  in 
his  last  speech  to  advance  any  argument  to  an- 
swer which  no  opportunity  is  given. 

Every  phase  of  the  case  that  the  opponent  ad- 
vances should  be  covered.  No  point  should  be 
left  unanswered  or  unprotected  because  some- 
times even  a  very  small  point  that  may  seem 
trivial  may  have  its  effect  upon  either  the  whole 
jury  or  upon  some  member  of  the  jury.  If  it 
is  trivial  its  weakness  should  be  shown. 

At  all  times  it  must  be  borne  in  mind  that 
mere  abuse  is  not  argument,  mere  rhetoric  is  not 
reason,  and  that  eloquence  is  not  evidence. 


THE  ARGUMENTS.  253 

They  may  all  be  very  useful  but  the  substantial 
frame-work  and  foundation  of  the  case  must  be 
argument,  reason,  and  evidence. 

Where  there  is  a  sharp  conflict  of  evidence  the 
lawyer  must  by  summary  show  that  his  own  evi- 
dence is  most  consistent  with  the  possibilities  or 
the  probabilities,  or  the  actualities  of  the  case. 
Of  course  that  line  of  evidence  is  most  convinc- 
ing which  is  fully  in  accord  with  the  conceded 
circumstances.  Next  comes  the  probable  and 
last  the  possible. 

One  of  the  most  skillful  moves  in  a  case  is  to 
harmonize  everything  as  much  as  possible.  It  is 
much  easier  to  swim  with  the  current  than 
against  it.  So  the  lawyer  must  try  to  turn  so 
much  of  the  evidence  as  he  can  into  the  channel 
leading  to  his  side  of  the  case  rather  than  try  to 
oppose  it. 

The  jury  is  more  apt  to  believe  witnesses  if 
they  want  to  believe  them.  The  lawyer  must, 
therefore,  lay  such  a  train  of  logic  as  will  predis- 
pose the  jury  in  favor  of  his  client  and  witnesses. 
Take,  for  instance,  a  suit  where  the  city  has  dug 
a  tunnel  to  bring  water  into  the  city  and  in  the 
course  of  the  work  has  done  an  injury  which  re- 
sults in  a  suit  for  damages.  The  plaintiff  is  a 
tradesman  and  his  lawyer  will  show  how  his 
business  was  interrupted  and  will  develop  to  the 
jury  the  importance  of  protecting  a  man  in  his 


254  TRIAL  TACTICS. 

industry.  He  will  assert  that  his  family  is  de- 
pendent on  his  success,  that  he  wants  to  rear  his 
children  to  be  self-supporting  and  that  it  is  for 
the  benefit  of  the  public  as  a  whole  to  protect 
every  man  in  his  business  and  that  hence  there 
should  be  compensation  to  the  plaintiff  for  the 
damage  done.  This  will  be  effective  and  the  jury 
will  probably  give  damages  because  they  feel 
that  it  is  only  right  and  just.  The  defendant's 
lawyer  on  the  other  hand  in  his  speech  will  tell 
about  the  importance  to  all  citizens  of  a  pure 
water  supply  and  the  necessity  of  allowing  the 
city  to  dig  the  tunnel  and  to  dig  it  with  economy 
without  being  swamped  with  debts.  He  will  try 
to  persuade  the  jury  that  damages  should  not  be 
awarded  against  the  city  on  that  account. 

Again  the  city  is  liable  under  the  law  if  it  al- 
lows a  mob  to  do  any  damage.  The  property 
owner's  lawyer  advances  the  same  argument  that 
has  just  been  given.  On  the  other  hand  the  city 
attorney,  defending  the  suit,  urges  the  hardship 
to  the  city  if  heavy  damages  should  be  given. 
He  contends  that  each  individual  should  take 
care  of  himself  and  thus  prevent  mobs. 

In  questions  about  master  and  servant,  whether 
or  not  the  master  is  liable  for  an  injury  to  the 
servant  the  attorney  on  the  one  side  will  show 
how  the  servant  must  be  protected ;  he  is  depend- 
ent upon  his  industry  and  he  ought  to  have  pro- 


THE  ARGUMENTS.  255 

tection  of  life  and  limb  while  he  is  at  work.  On 
the  other  hand  the  attorney  for  the  employer  will 
show  how  the  employer  himself  is  dependent 
upon  the  servant 's  care ;  how  the  carelessness  of 
the  servant  or  of  his  fellow  servant  may  not 
only  injure  his  master's  business  but  may  injure 
the  entire  community;  it  may  result  in  a  boiler 
explosion  or  similar  catastrophe  in  which  many 
innocent  people  are  killed.  The  attorney  for  the 
master  should  explain  to  the  jury  that  it  is  im- 
portant for  the  servant  to  be  held  to  these  rules. 
In  other  words  one  sympathy  must  be  over- 
come with  the  opposite  sympathy;  one  general 
trend  of  justice  with  the  opposite  trend  of  jus- 
tice. Each  one  must  exert  himself  in  his  own 
direction.  Nothing  appeals  more  strongly  to  the 
jury  than  the  very  common  case  of  a  child  that 
has  been  injured  by  a  railroad  train.  Of  course 
the  general  sympathy  is  at  once  raised  for  the 
child,  ruthlessly  run  down  by  the  train  and  the 
jury  is  more  than  ready  to  find  for  the  child. 
On  the  other  "hand  the  defendant  will  bring  out 
that  the  train  was  carrying  people  who  were 
travelling ;  that  people  must  travel  and  that  rail- 
road service  is  a  beneficent  institution.  One  of 
the  passengers  might  be  hastening  to  a  sick  bed ; 
another  one  may  be  hurrying  home  to  attend  to 
some  important  industry;  a  physician  might  be 
hurrying  to  the  bedside  of  a  person  who  needs 


256  TRIAL  TACTICS. 

his  immediate  attention.  The  train  is  going  rap- 
idly in  response  to  a  public  demand  for  speed. 
This  is  the  justification  which  overcomes  to  some 
extent  the  idea  of  a  train  as  a  ruthless  and  de- 
structive monster,  and  at  least  gives  the  defend- 
ant some  chance  before  the  jury. 

Another  difficult  position  for  the  plaintiff  is 
that  of  a  bank  suing  on  a  note  against  some  small 
tradesman;  the  attorney  for  the  small  debtor 
pleads  that  he  should  not  be  burdened  with  this 
unjust  debt,  assuming  some  defense  or  other. 
The  attorney  for  the  bank  however  starts  in  by 
saying  that  he  feels  as  though  the  jury  has  a 
general  idea  that  the  bank  is  a  corporation  which 
grows  rich  upon  the  industry  of  people,  but  he 
passes  on  to  the  justification  of  a  bank.  He 
brings  out  the  fact  that  trade  could  not  continue 
if  it  were  not  for  banking  facilities,  that  trades- 
men themselves  are  dependent  on  banks,  and 
the  smaller  the  tradesman  the  more  necessity  for 
a  bank.  He  must  deposit  his  money  and  the 
safety  of  the  banks  is  of  the  utmost  importance 
to  these  small  tradesmen.  But  the  bank  cannot 
be  safe  and  strong  unless  the  jury  protects  it  in 
its  right;  sees  that  when  it  lends  out  money  it 
gets  the  money  back  again,  and  so  on. 

There  are  strong  natural  equities  which  are 
developed  on  one  side  of  the  case  or  on  both 
sides.  One  of  the  strongest  natural  appeals  is 


THE  ARGUMENTS.  257 

what  is  called  a  common-law  marriage,  especially 
where  there  are  children  born  of  the  union.  A 
woman  claims  that  a  man  is  her  husband  though 
no  marriage  ceremony  was  solemnized.  The 
jury  is  more  than  eager  to  sustain  the  marriage, 
more  than  eager  to  sustain  the  children  as  legal 
and  legitimate.  In  a  case  of  that  sort  a  very 
strong  counter  argument  would  be  required  for 
the  defense. 

Again,  a  will  may  seem  unreasonable  and  un- 
just in  its  terms.  The  parents  have  left  a  con- 
siderable estate,  in  the  accumulation  of  which 
the  sons  have  helped  in  the  business  and  the 
daughters  in  the  household.  If  it  is  found  that 
the  father  has  willed  all  his  property  to  strang- 
ers or  perhaps  to  distant  relatives  or  even  for  a 
commendable  charitable  purpose  it  strikes  the 
jury  as  unreasonable  for  the  man  to  ignore  his 
own  flesh  and  blood  and  they  are  ready,  when 
that  is  pointed  out  to  them,  to  follow  the  natural 
equity  and  defeat  the  will  if  there  is  the  slightest 
chance  to  do  it.  They  will  ignore  the  weight  of 
the  evidence  and  the  preponderance  of  the  evi- 
dence and  everything  else  if  possible  in  favor  of 
natural  equity  and  therefore  it  is  the  duty  of  the 
lawyer  to  point  this  out  to  them. 

Criminal  cases  have  their  natural  equities  on 
each  side  very  strongly  marked.  Sometimes  the 
only  defense  is  the  reliance  upon  constitutional 


258  TRIAL  TACTICS. 

privileges  or  upon  the  common  law  that  the  de- 
fendant must  be  not  only  found  guilty  but  must 
be  found  guilty  beyond  a  reasonable  doubt. 
Sometimes  the  jury  may  think  that  that  is  only 
a  shadowy  thing  and  it  is  the  lawyer's  duty  to 
emphasize  its  importance. 

In  regard  to  insurance  again  the  jury  may 
think  that  the  clauses  in  a  policy  are  very  se- 
vere and  technical  and  that  they  should  not  be 
enforced  against  the  plaintiff  who  has  suffered 
a  loss  by  fire ;  or  by  accident  or  death,  if  it  is  a 
life  insurance  matter.  The  advocate  for  the 
defendant  company  may  then  remind  the  jurors 
of  what  is  very  apt  to  be  the  case,  that  some  of 
them  are  themselves  component  parts  of  insur- 
ance companies  for  in  nearly  every  jury  will  be 
found  a  number  of  men  who  belong  to  some 
brotherhood  or  society,  to  the  Knights  of  Pyth- 
ias, United  Workmen,  or  to  one  of  the  organiza- 
tions of  that  sort  which  are  to  some  extent  insur- 
ance societies.  He  may  request  them  when  they 
go  home  to  read  their  policies  which  are  the  con- 
stitutions and  by-laws  and  they  will  be  found 
a  great  deal  more  technical  than  the  clauses  in 
this  policy.  So  they  begin  to  see  that  these 
clauses  are  necessary  to  protect  the  funds  of 
such  a  society  against  unjust  and  improper 
claims. 

Apt  allusions  and  imagery  are  very  helpful  in 


THE  ARGUMENTS.  259 

argument  and  a  practitioner  does  well  to  store 
his  mind  with  material  for  that  purpose  which 
he  may  gain  from  reading  history,  science,  meta- 
physics,— from  nearly  everything.  The  day  of 
the  jury  advocate  has  passed  in  which  the  legal 
giants  of  the  old  school  would  argue  for  days 
about  a  case  involving  a  hog  or  a  coat,  and  use 
every  power  of  pathos,  ridicule  and  oratory  in 
establishing  their  side  of  the  case.  Time  is  lim- 
ited now,  and  brief,  emphatic  arguments  must 
be  employed,  but  apt  illustrations  and  quotations 
may  still  be  used  if  they  are  short  and  strong. 

Shakespeare  is  an  abundant  source  of  illus- 
tration; the  Bible  an  even  greater  one.  In  ar- 
guing a  case  for  a  laboring  man  the  jury  may 
be  reminded  that  he  who  sows  the  seed  is  entitled 
to  a  share  of  the  harvest,  a  doctrine  as  old  as 
Holy  Writ  and  universally  acknowledged  as 
just. 

As  a  simile  for  slander  the  old  tale  may  be 
told:  that  one  found  guilty  of  slander  was  or- 
dered by  the  judges  to  go  to  the  top  of  a  tower 
with  a  handful  of  thistle  down  which  he  must 
allow  the  wind  to  blow  away,  and  then  as  a  pen- 
alty ordered  to  go  down  and  pick  each  fibre  up 
again.  Defamatory  words  which  are  spoken  or 
printed  are  scattered  to  the  four  winds  of  heaven 
and  it  would  be  an  impossible  task  to  recall  them, 
to  pick  them  up  and  bring  them  back.  Not  only 


260  TRIAL  TACTICS. 

that,  but  they  are  a  very  noxious  seed  which  pro- 
duces a  prolific  crop. 

To  impress  upon  a  jury  the  extent  of  a  client's 
sufferings  from  an  injury  is  a  simple  enough 
matter  where  the  injured  party  sits  before  the 
jury  with  his  hand  sawed  off  and  with  the  un- 
sightly stump  of  an  arm  protruding.  It  does 
not  take  much  argument  in  a  case  of  this  sort, 
but  there  are  injuries  quite  as  grievous  though 
not  so  apparent,  which  the  untrained  intellect, 
not  only  of  jurors  but  of  judges,  will  fail  to  ap- 
preciate unless  their  imaginations  are  stimu- 
lated. For  instance  the  affliction  of  insomnia  or 
impaired  sleep  as  the  result  of  an  accident  must 
be  brought  home  to  the  jury  in  some  effective 
way  and  Shakespeare  may  avail — 

"The  innocent  sleep; 

Sleep,  that  knits  up  the  ravell'd  sleeve  of  care, 
The  death  of  each  day's  life,  sore  labor's  bath," 

or 

"Balm  of  hurt  minds,  great  Nature's  sec- 
ond course, 
Chief  nourisher  in  Life's  feast." 

In  damage  suits  the  plaintiff's  lawyer  must 
not  forget  to  let  the  jury  know  something  about 
the  amount  of  damages  that  he  thinks  his  client 
is  entitled  to  because  if  he  does  not  allude  to  that 


THE  ARGUMENTS.  261 

and  demonstrate  to  them  how  they  may  compute 
the  amount  they  may  not  come  to  any  satisfac- 
tory conclusion  in  the  matter. 

It  is  wise  to  harmonize  apparent  controver- 
sies whenever  possible,  to  try  to  make  the  jury 
understand  that  both  sides  want  the  same  out- 
come. Take  for  instance  the  case  of  the  hus- 
band who  is  suing  his  wife  for  adultery.  It  may 
readily  be  argued  by  the  defense  in  such  a  case 
that  both  sides  want  the  defendant  to  win.  Cer- 
tainly the  wife  wants  to  win  to  vindicate  her 
name  and  the  complainant  wants  the  defendant 
to  win  to  prevent  his  own  children  from  going 
through  life  disgraced.  The  jury  are  told  that 
the  husband  would  be  only  too  glad  to  find  that 
he  had  been  misinformed  or  mistaken  and  that  he 
would  be  the  first  to  welcome  a  verdict  of  not 
guilty  and  to  know  that  his  wife  was  innocent. 
Under  these  circumstances  the  jury  would  find 
for  the  wife  if  they  possibly  could.  They  would 
reason,  "Of  course  we  are  glad  to  tell  this  man 
that  his  wife  is  innocent  and  to  remove  this  cloud 
from  the  family."  It  would  require  a  very 
strong  case  against  the  wife  for  the  jury  to  over- 
come that  argument. 

Suppose  in  another  case  the  husband  is  on  trial 
accused  of  murdering  his  wife  and  his  defense 
is  that  she  committed  suicide.  The  counsel  for 
the  accused  will  here  plead  how  much  more  con- 


262  TRIAL  TACTICS. 

soling  it  is  for  the  children  to  retain  the  father's 
care  rather  than  to  have  him  executed  and  be 
deprived  of  both  parents;  to  retain  the  father's 
good  name  rather  than  be  branded  as  the  chil- 
dren of  a  murderer ;  and  to  assume  that  this  poor 
woman  in  a  demented  condition,  for  which  no- 
body is  responsible,  killed  herself.  There  are 
indeed  cases  and  this  unfortunately  may  be  one 
of  them,  where  guilt  is  so  clear  and  unmistakable 
that  the  jury  must  find  the  defendant  guilty ;  but 
the  duty  of  the  advocate  is  plain,  he  must  make 
use  of  whatever  material  he  has. 

Quite  a  common  occurrence  is  a  suit  on  a  fire 
insurance  policy  in  which  the  fire  insurance  com- 
pany claims  that  the  party  set  the  property  on 
fire  himself.  The  company's  lawyers  will  say 
in  a  magnanimous  spirit  in  order  to  gain  favor 
with  the  jury,  that  the  company  does  not  care 
very  much  for  the  amount  but  that  they  never- 
theless must  insist  upon  an  example  being  made 
in  order  that  such  crimes  may  not  become  too 
prevalent.  The  plaintiff's  attorney  answers, 
"Of  course  the  defendant  does  not  care  about 
this  small  amount  of  money  and  therefore  a  ver- 
dict for  the  plaintiff  will  make  both  sides  happy," 
and  with  a  right  argument  and  a  slight  amount 
of  evidence  the  jury  will  find  against  the  insur- 
ance company  if  it  can  be  shown  that  the  client 


THE  AEGUMENTS.  263 

has  paid  his  premiums  and  is  entitled  to  be  pro- 
tected when  disaster  comes. 

In  cases  of  great  moment,  cases  involving  the 
trial  of  life  and  death  the  prosecutor  must  work 
the  jury  up  to  the  point  where  it  will  do  its  duty. 
Humanity  is  exceedingly  reluctant  to  deprive  a 
fellow  being  of  life  and  a  jury  is  very  slow  to 
find  the  accused  guilty  of  murder  and  condemn 
him  to  death  unless  the  jurors  are  worked  up  to 
the  point  where  their  duty  is  unmistakable.  The 
prosecution  will  call  their  attention  to  the  rule  in 
the  old  Greek  trilogy  which  has  existed  for  un- 
told time.  "Blood  for  blood  and  blow  for  blow. 
Thou  shalt  reap  as  thou  dost  sow,'*  or  will  appeal 
to  Scripture  "An  eye  for  an  eye,  a  tooth  for  a 
tooth,"  or  again  "Whoso  sheddeth  the  blood  of 
man  by  man  shall  his  blood  be  shed, ' '  which  has 
stood  the  test  for  six  thousand  years.  The  in- 
terest of  the  juror  must  be  lifted  to  that  height 
where  he  can  disregard  individuality  and  give 
his  attention  only  to  doing  his  full  duty  regard- 
less of  any  consequence  or  any  sentiment. 

But  the  defender  in  the  intermediate  speech 
should  anticipate  this  last  speech,xand  in  a  meas- 
ure provide  against  it.  He  should  caution  the 
jury  that  they  must  be  dispassionate,  that  they 
must  not  allow  themselves  to  be  worked  up  into 
a  fury  by  the  mere  heinousness  of  the  offense 
because  it  would  only  be  a  double  wrong  if  the 


264  TRIAL  TACTICS. 

jury  should  make  an  innocent  person  suffer. 
He  should  remind  them  that  even  if  crime  was 
committed  the  safety  of  society  requires  only  a 
punishment  commensurate  with  the  offense  and 
nothing  more;  that  it  is  not  their  province  to 
thirst  for  blood  or  to  do  vengeance.  They  are  not 
there  to  execute  someone  simply  because  an  of- 
fense has  been  committed  but  to  investigate  and 
to  see  beyond  a  reasonable  doubt  where  the  guilt 
is.  He  also  should  remind  them  of  the  biblical 
injunction  "Vengeance  is  mine,  I  will  repay, 
saith  the  Lord,"  which  is  some  check  against 
their  being  swept  to  extremes  by  the  last  stirring 
speech  of  the  prosecution. 

So  each  case  has  its  own  illustrations  and  in 
each  case  something  may  be  said  in  a  general 
way  of  what  has  been  called  natural  equity 
which  may  be  developed  by  the  plaintiff's  at- 
torney on  the  one  side  or  brought  to  the  atten- 
tion of  the  jury  by  the  defendant's  attorney  on 
the  other  side. 

The  admonition  must  be  repeated  that  what 
has  in  any  instance  been  said  is  not  to  be  re- 
garded as  a  rule  to  be  unvaryingly  adhered  to 
but  only  as  a  suggestion  to  be  worked  out  and 
made  applicable  to  the  particular  case. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


MAY  8     1973 


Form  L9-25m,-9,'47(A5618)444 


UNIVERSITY  of  CALIFORNIA 
LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA      LOS  ANGELES 
LOS  ANGELES  LIBRARY 


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P7H6 


